Wheare v Police; Wheare v Police
[2023] SASC 23
•17 February 2023
Supreme Court of South Australia
(Magistrates Appeal: Criminal)
WHEARE v POLICE; WHEARE v POLICE
[2023] SASC 23
Judgment of the Honourable Justice Nicholson
17 February 2023
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PROCEDURE - TIME FOR APPEAL AND EXTENSION
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY
TRAFFIC LAW - LICENSING OF DRIVERS - QUEENSLAND - OFFENCES - DRIVING WHILE UNLICENSED OR DISQUALIFIED
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
Appeal against conviction and sentence.
Following a trial in the Magistrates Court, the applicant was found guilty of four offences:
(i) failing to comply with reasonable directions when undergoing a breath analysis procedure; (ii) driving whilst suspended from holding a licence; (iii) driving contrary to the terms of a defect notice and (iv) resisting police. The applicant was fined and disqualified from driving for 11 months and one week. The applicant was also sentenced to imprisonment for the total term of 24 days. The Magistrate suspended the term of imprisonment upon the applicant entering into a bond to be of good behaviour for two years.
The applicant has appealed against the convictions and sentences, out of time. The respondent submits that the leave to appeal out of time should be refused and the appeal dismissed.
Held:
1. Leave to appeal out of time refused.
2. Appeal dismissed.
Joint Criminal Rules 2022 (SA) r 191.3; Magistrates Court Act 1991 (SA) s 42; Motor Vehicles Act 1959 (SA) s 98B(1), s 98B(4); Road Traffic Act 1961 (SA) s 47E(3), s 91(5), s 145(6); Summary Offences Act 1953 (SA) s 6(2), referred to.
Chan v Police [2014] SASC 35; Crotty v Police [2008] SASC 308; Fox v Percy (2003) 214 CLR 118; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499; Markarian v The Queen (2005) 228 CLR 357; R v Morse (1979) 23 SASR 98; R v Tran [2017] SASCFC 60; Rowland v Police (2001) 79 SASR 569; Shillabeer v Linnane (1979) 22 SASR 382; Tazroo v Police [2002] SASC 155, considered.
WHEARE v POLICE; WHEARE v POLICE
[2023] SASC 23Magistrates Appeal: Criminal
NICHOLSON J: These reasons concern an application for an extension of time within which to appeal from decisions of a Magistrate sitting in the criminal jurisdiction. On 4 January 2022, the applicant, Kym Randall Wheare, following a trial in the Magistrates Court, was found guilty of the following offences.[1]
(i)Failing to comply with reasonable directions when undergoing a breath analysis procedure contrary to subsection 47E(3) of the Road Traffic Act 1961 (SA).
(ii)Driving whilst suspended from holding a licence contrary to subsection 91(5) of the Motor Vehicles Act 1959 (SA).
(iii)Driving a vehicle contrary to the terms of a defect notice contrary to subsection 145(6) of the Road Traffic Act 1961 (SA).
(iv)Resisting police contrary to subsection 6(2) of the Summary Offences Act 1953 (SA).
The applicant was ordered to pay prosecution costs of $150, victims of crime levies and court fees. However, the court fees were later waived.[2]
[1] Police v Wheare (Magistrates Court, Magistrate Grant, 4 January 2022) (Magistrate’s judgment).
[2] At the time sentences were imposed.
On 11 February 2022, convictions for all four offences were entered and the applicant was sentenced as follows:[3] for the failure to comply, a fine of $1,100 and a driving disqualification for 11 months and one week; for driving contrary to a defect notice, a fine of $200; for resisting police, imprisonment for 14 days; and for driving disqualified, imprisonment for 10 days. The Magistrate ordered that the two prison terms be served cumulatively but suspended the total term of 24 days upon the applicant entering into a bond to be of good behaviour for two years.
[3] Police v Wheare (Magistrates Court, Magistrate Grant, 11 February 2022) (Magistrate’s remarks on penalty).
On 10 August 2022, the applicant filed a notice of appeal including an application for an extension of time within which to appeal. The notice of appeal was filed more than six months out of time with respect to the conviction appeal and more than five months out of time with respect to the sentence appeal. The applicant has given the following reasons for the delay, as set out in his notice of appeal.
I was informed it’s about 28 – 30 days to appeal, and have been constant at getting everything organised since the start, and have the dates and emails to prove this. I have asked Christies Beach Magistrates Court for a copy of the transcript multple (sic) times and are still waiting. Keep getting the run around and not impressed that they have mentioned a fee for this, yet I am unemployed due to this illegal activity, a feel I should be able to receive this information to prove my innocence. It sincerely has ruined my life.
The applicant was unrepresented at the trial and on this appeal. However, he did have representation for the purpose of and at the presentation of his submissions on sentence. He wishes to appeal against all four convictions, together with the “2 year Good Behaviour Bond” and “Loss of Points”. During the appeal hearing, the applicant indicated that his concern with the bond was as to its length and that the requirement to comply with its terms, in particular not to travel interstate without permission for two years, was excessive and too onerous. However, I have also given consideration to the imposition of the underlying suspended accumulated prison terms of 10 days and 14 days (24 days in total).
Summary of the events
The Magistrate, in his Honour’s published reasons, provided the following summary in neutral terms of the relevant interactions between the applicant and the police.[4]
The charges arise from 2 separate incidents that occurred several hours apart in a the early hours of 19 December 2019.
In the first incident, SC Royans and Starkey were on uniform mobile patrol in a marked police vehicle when they either stopped the defendant or stopped behind him after he had pulled over. They performed an alcotest on the defendant, which was positive. They then conveyed the defendant in their vehicle to the Aldinga Police Station where a breath analysis procedure was undertaken.
This incident gives rise to the charge of failing to comply with all reasonable directions in relation to the breath analysis. Police gave the defendant a Notice of Disqualification (Exhibit P6) at about 1.40am.
The defendant was then released from the Police Station shortly thereafter and left to find his own way home.
The second incident, which gives rise to the remaining 3 charges, begins at about 3.20am when SC Royans and Starkey (still on uniform mobile patrol in a marked police vehicle) placed a defect notice on the windscreen of the defendant’s vehicle, which was at that time on the side of the road where it had been left when they had taken the defendant to Aldinga Police Station for the breath analysis procedure.
At about 4.00am, SC Royans and Starkey saw the defendant’s vehicle being driven by the defendant. Prosecution allege that this was in breach of both the disqualification notice given to the defendant several hours earlier and the defect notice still attached to windscreen of the defendant’s vehicle.
Police stopped the defendant with the intention of arresting him. In the course of doing so it is alleged by prosecution that he resisted police.
For his part, the defendant strongly denies resisting police and alleges that the police brutally assaulted him. In addition, he claims that he either was still licenced at the time or had an honest and reasonable belief that he was so licenced.
[4] Magistrate’s judgment at [18]-[25].
Grounds of appeal
The proposed grounds of appeal set out in the notice of appeal are as follows.
1 – Fail to Comnply (sic) with Breath Analysis Machine – I did “Comply with the Breath Analysis” although given inadequate instructions by an incompetent aggressive operator who assaulted me. First time I’ve had to use on and First time “alleged” offence. When I said in Court “well considering you’re an expert in this” to which Prosecution Hannah Shaw stood up to object and said “He never said he was an expert just qualified”. This has now ruined my life!!! I have video footage of the Breath Analysis and am still waiting on the Court transcript.
2 – Driving Contrary to Defect – Senior Constable Samuel Royans ID 79864 admitted in Court, he never checked my car when he defected it and definitely could not look inside as I had the keys. and falsified the report by assuming. Plus, incorrectly filled the Defect Notice out. Prosecutor Hanbnah (sic) Shaw was the one who entered the Falsified Document to Court BUT wouldn’t accept my Medical Records.
3 – Driving Whle (sic) Disqualified – I had got my keys and license back from the Aldinga Police and forcefully pushed out from the Police Station, made to walk home from Aldinga to Seaford (I was seriouly (sic) exhausted so I had to get a Taxi as couldn’t make it all the way back) where I had already pulled over in my car when they came behind and started on me. It was the second time they pulled me over that they assaulted me that made me end up in Noarlunga Hospital with medical records to prove this.
4 – Hinder Police – I never touched any of the Police and was only assaulted by them, one of the Officers James Webb, actually covered up the camera with his fingers while they were assualting (sic) me. Plush smahed (sic) my glasses and ripped my shirt as they Pepper Sprayed me and threatened to Taser me. I have been diagnosed by a Doctor and Psychiatrist that this has caused my PTSD and I have been in and out of Hospital due to my breathing problems and shortness of Breath.
5 – 2 Year Good Behaviour Bond – This is the first time I have been in an Unfortunate situation like this and this has ruined my life and my career.
6 – Loss of Points – Being a truck driver for over 20 years I need my points back, as have kept them in good for a long time, to continue driving. I was not aware that’d I’d be losing points.
As far as the conviction appeal is concerned, none of the grounds constitutes a proper ground of appeal except to the extent, expressly or by inference, that they identify a challenge to the Magistrate’s findings of fact that underpin each conviction. The two sentence grounds of appeal also do not constitute proper grounds of appeal. However, under the headings “Orders sought” in the notice of appeal, the applicant states that the bond concerned a first alleged offence and “is extreme”. I take this to be a complaint of manifest excess.
The matter was first listed before me on 25 November 2022. The application was adjourned to 9 December 2022 and then to 15 December 2022 in order to provide the applicant with an opportunity to consider the transcript and video footage exhibits from the trial. I took the opportunity during the adjournment to review the lower court file, the trial transcript, the trial exhibits and the Magistrate’s two sets of reasons with a view to identifying other possible grounds of appeal, bearing in mind the unrepresented status of the applicant on appeal.
The nature of the appeal and general principles
Section 42 of the Magistrates Court Act 1991 (SA) confers a right to appeal which is to be in the nature of a re-hearing. As far as the convictions are concerned, I must independently review all of the evidence that was before the Magistrate, together with any other evidence properly admitted on the appeal, and arrive at my own conclusions even if no error by the Magistrate can be identified.[5] However, in undertaking this task, I must give due weight to the usual advantages enjoyed by the Magistrate at first instance in seeing and hearing the witnesses give their evidence.[6] As far as the sentence appeal is concerned, I am bound to apply the principles summarised by the High Court in House v The King.[7]Unless the Magistrate has erred in some way and a sentence is to be set aside, I am not entitled to substitute my own opinion merely because I would have exercised the sentencing discretion differently.[8]
[5] Rowland v Police (2001) 79 SASR 569 at [36] (Perry J).
[6] Tazroo v Police [2002] SASC 155 at [19] (Lander J).
[7] (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ).
[8] House v The King (1936) 55 CLR 499 at 504 (Dixon, Evatt and McTiernan JJ), Markarian v The Queen (2005) 228 CLR 357 at 371 [28] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
The appeals are out of time and an extension of time is required. In deciding whether or not to grant an extension of time within which to appeal, the relevant considerations are: the length of the delay, the reasons for the delay and whether or not the prospective appeal is viable.[9] Ultimately, the discretion to extend time exists for the purpose of doing justice between the parties.[10]
[9] R v Tran [2017] SASCFC 60 at [44] (Kelly J with Vanstone and Stanley JJ agreeing).
[10] Crotty v Police [2008] SASC 308 at [42] (Kelly J).
Evidence before the Magistrate and on appeal
The prosecution adduced oral evidence from three police officers who had witnessed various aspects of the interactions and tendered a number of documents (exhibits P1 to P9) including two DVDs, containing vision and sound from a police body-worn camera of aspects of the first incident and of the second incident. The applicant gave evidence on his own behalf and tendered admissible parts of a Noarlunga Hospital Discharge Summary dated 19 December 2019 (exhibit D2).[11]
[11] Marked for identification as MFI-D1 is a brief doctor’s report that the applicant sought to tender. However, the author was not presented for cross-examination and following objection by the prosecution the tender was refused.
At the hearing of the appeal the applicant sought to tender, as fresh evidence on appeal, a short statutory declaration dated 4 March 2022 by a friend who was present at the trial. I received this marked for identification as MFI-A1. He also sought to tender two photographs taken on the night in question; one of the applicant’s motor vehicle and another being a close up of the windscreen showing the location of the defect notice. I received these marked for identification as MFI-A2.
Throughout the trial, the Magistrate provided such assistance to the applicant, as an unrepresented litigant, as was appropriate including assistance when cross-examining the prosecution witnesses and when giving his own evidence so that the applicant’s case might be adequately put before the court. Throughout the trial and the appeal, the applicant persistently criticised the police behaviour towards him during the night in question. According to the applicant, the police were rude and aggressive, and at times were physically violent. The applicant was and remains of the view that the police behaved very unfairly towards him and misused their powers. I accept that, in these respects, the applicant genuinely feels aggrieved, although, having reviewed the evidence, I do not share his view of the police behaviour. The Magistrate made appropriate efforts to assist the applicant to focus on and address the evidence adduced by the prosecution in support of the elements of each of the charged offences. However, the applicant remained focussed on his attack on the police witnesses for their perceived failures to treat him fairly and appropriately and, rarely, if at all, engaged with the prosecution case and its proofs.
The Magistrate’s trial reasons
The Magistrate appropriately identified directions of law that he was obliged to observe; reviewed and made formal findings beyond reasonable doubt based on the documentary exhibits tendered by the prosecution; and reviewed the body-worn camera footage and the evidence of the police witnesses and the applicant. Based on the foregoing, his Honour made findings of fact and was satisfied that each of the four offences, as charged, had been established beyond reasonable doubt.
With respect to the failure to comply charge, his Honour’s findings included the following.[12]
[12] Magistrate’s judgment at [27], [30], [31], [39]-[42], [44] and [53]-[55].
In my view, the key evidence in this trial is the [body-worn camera footage] of both incidents. It gives a clear view and understanding of the interactions between the [applicant] and Police. The footage of both incidents was watched during the trial and I have viewed it again in considering my verdict and preparing my reasons.
. . . .
In my view, the general approach and attitude of SC Royans and SC Starkey to the [applicant] to this point is calm, patient and reasonable. They were entitled to breath test him as they did and, upon a positive result, transport him to the Aldinga Police Station for a formal breath analysis procedure.
In contrast, the [applicant] is difficult, does not appear to listen to the Police at times and does not want to accept that he must go to Aldinga Police Station for a breath test. He appears pre-occupied with his vehicle.
. . . .
Despite being provided clear instructions by police, the first sample provided by the [applicant] is a failure because he failed to place his mouth anywhere near the mouthpiece (let alone seal his mouth over it) when he blew. In my view, this was intentional disobedience to the instructions that he was given.
By about 2:13 the [applicant] is becoming argumentative, loud and difficult with Police. He appears to be able to talk loudly, and continually, without any problem. He certainly does not appear short of breath.
I consider it important to state in clear terms my view that, throughout the balance of the breath analysis procedure, the conduct of the [applicant] is generally appalling, disrespectful and needlessly aggressive and agitated towards SC Royans and SC Starkey. At no stage does the [applicant] appear short of breath or unwell. Indeed, his constant talking in a loud and aggressive manner counters any suggestion that he was, at this time, unable to provide an adequate breath sample.
The [applicant] provides an adequate breath sample for analysis on the second attempt. However, having carefully and repeatedly viewed the third and fourth attempts of the [applicant], I make the following findings beyond reasonable doubt:
1.The defendant did seal his lips around the mouthpiece as directed; and
2.He makes no complaint of shortness of breath or other medical difficulty at the time; and
3.On both attempts he does not make a proper effort to blow into the mouthpiece; and
4.On both attempts he stops blowing into the mouthpiece at an early stage.
5.At about 2:22 he is given his first warning regarding medical issues and does not raise anything at that time.
6.After his final test he asks for something to put on his lips as it is very dry. I find that this was an attempt to divert attention from the obvious that he stopped blowing into the mouthpiece at an early stage.
7.I find that the [applicant] deliberately and intentionally stopped blowing into the mouthpiece at an early stage and not due to any medical condition or any other reasonable basis.
. . . .
The [applicant] denies failing to comply with Police but, in my view, the [body-worn camera footage] is clear (and I so find) that the [applicant] did fail to comply on three of the four occasions he was asked to provide a breath sample.
. . . .
At about 2:36 police provide the Notice of Immediate Disqualification to the [applicant]. He clearly knows what is happening as he says, “You don’t have a right to disqualify my licence or take my car away”. A few minutes later, he says “I’m not agreeing to your disqualification” and claims that the Notice is ‘not a legalised document’.
In my view, the conduct of the police at this time (and indeed throughout the breath analysis procedure) was measured, patient and reasonable. If, on occasion, they raised their voice that is to be expected in dealing with someone conducting themselves as the [applicant] did on this occasion.
In contrast, the [applicant] was loud, aggressive, angry, argumentative and unreasonable throughout the process. I find that this conduct was intentional. I further find that the [applicant] deliberately failed to comply with the breath analysis and knew full well when he left the Police station that he had been disqualified from driving.
With respect to the second incident and the three charged offences arising, the Magistrate’s findings included the following.[13]
[13] Magistrate’s judgment at [56]-[65].
The second incident is also captured on [the body-worn camera footage] and commences at 3:59am on 19 December 2019.
The [applicant] had been served with a Notice of Disqualification at about 2:36 effective forthwith and his vehicle had been defected by them at about 3.20am.
SC Royans and Starkey are again on mobile patrol and see the [applicant] driving his vehicle at about 3:59am.
They pull the [applicant’s] vehicle over and, almost immediately, inform the [applicant] that he is under arrest for driving disqualified and driving a defected car.
The officers go to handcuff the [applicant], who plainly resists from the beginning by trying to avoid being placed in handcuffs. The defendant tells the police that “I’m taking it home…”
The [applicant] is given multiple warnings by police that he is resisting arrest. The [applicant], for his part, maintains that he is “taking my car home”. He tenses his arms, not allowing police to place handcuffs on him.
At about 4:02am the [applicant] asks why he is under arrest. The police had already advised him in clear terms what he was under arrest for and he is told multiple times over the course of the incident. During the course of the incident the [applicant] insists that “I have done nothing wrong tonight” and that the was “taking the car home”.
It is apparent that, by about 4:10am, the police officers have well and truly had enough of the [applicant]. He is repeatedly capsicum sprayed and, with the assistance of a passing civilian and other officers, handcuffed and placed into the rear of a police van.
The conduct of the police in this incident cannot be faulted. They saw the [applicant] driving in a vehicle less than 2 hours after they had personally served him with an immediate loss of licence and less than 1 hour after they had placed a defect notice on the vehicle being driven.
They were entitled to arrest him at that point in time to prevent a continuation of the alleged offending conduct. From the start, the [applicant] was non-compliant and resisted them. His behaviour was, again, loud, aggressive, unreasonable and wholly unacceptable.
The Magistrate found that the police witnesses “gave their evidence in an honest and frank manner … [which evidence] on all essential matters [was] consistent with the [video footage]”.[14] His Honour found that the applicant “was a very poor witness” although not dishonest.[15]
He maintained his position on what happened even in the face of the [body-worn camera footage] which, in my view, told a very different story to that put forward by the [applicant].
Rather, I find that the defendant has a very real, but very misplaced, grievance about how he was treated that night. That grievance is such that he has lost perspective and the ability to assess the events of the night in an even-handed and balanced fashion.
[14] Magistrate’s judgment at [67].
[15] Magistrate’s judgment at [81]-[82].
Consideration and resolution of the conviction appeal
When it comes to assessing the evidence of the police witnesses and the applicant, the Magistrate had the natural advantage over me of having heard and seen them give their evidence.
None of the considerations, as summarised and explained in Fox v Percy,[16] necessary to permit me to form a contrary view as to the credibility and reliability of the witnesses is made out. To the contrary, the body-worn camera vision and sound which I have had the advantage of reviewing supports both the evidence given by the police witnesses in material respects and directly supports the Magistrate’s findings concerning the interactions.
[16] [2003] HCA 22; (2003) 214 CLR 118.
In his section headed “Analysis”,[17] the Magistrate summarised his findings and conclusions of guilty with respect to each charged offence. I find no error of reasoning in that section.
[17] Magistrate’s judgment at [84]-[105].
The applicant has not in his grounds of appeal nor in his written and oral submissions identified any error by the Magistrate. On my review of the evidence as a whole, there has been no error and the factual basis for each of the four charges was proved at trial beyond reasonable doubt. The appeals against conviction are without merit.
I should say something briefly about the two documents the applicant sought to tender on the appeal. I, in effect, received them de bene esse.
The two photographs, MFI-A2, were available in the prosecution brief of evidence prior to trial. They do not in any respect satisfy the test for “fresh” evidence on appeal. In any event, they do not assist with the applicant’s defence to the offence of driving contrary to a defect notice as contended by him.
The statutory declaration, MFI-A1, only became available to the applicant at or about the time of its execution, 4 March 2022, some two months after the Magistrate’s judgment was delivered and almost four months after the police witness, the subject of the statutory declaration, gave his evidence on 10 November 2021. The declarant states that she attended the Christies Beach Magistrates Court on 9 December 2021. That was the second and last day of the trial. On that day, the applicant presented the defence case, including his own evidence, and closing submissions were given, following which the Magistrate reserved his decision.
The statutory declaration includes the following.
I witnessed Senior Constable Samuel Royans … under affirmation state, while being cross examined by [the applicant]: ‘Did you personally, physically, get under my car with a torch and check for oil leaks. Senior Constable Royans … replied: I assumed a car of that age would have oil leaks. Senior Constable Royans … responded ‘No’”.
This exchange does not appear in the transcript taken from the recording of the proceedings below and the applicant contends that the transcript is incomplete in this respect. The transcript was prepared sometime before 30 September 2022.[18] After I reserved my judgment the original trial recording was made available by the Magistrates Court.
[18] Enclosed with a letter from the Magistrate’s clerk of that day to the Registrar of this Court was the lower court file, including the transcript.
An initial difficulty with this new evidence is that Senior Constable Royans completed his evidence on 10 November 2021, not 9 December 2021, being the day that the declarant says she attended the trial. The declarant did not give evidence and I am in no position to make any finding in this respect other than to leave open the possibility that she has recorded the wrong date in the statutory declaration and that she did attend on 10 November 2021. Nevertheless, the original recording now available is inconsistent with the matters asserted in the statutory declaration. At no stage can Senior Constable Royans be heard to say the words or anything like the words as asserted by the declarant.
In any event, even if said and if true, the putative statements by Senior Constable Royans would not assist the applicant in his defence of the drive contrary to a defect charge. The defect notice recorded a number of defects in addition to engine leaks. The notice was properly filled out and contained a declaration that the vehicle was not to be driven until the defects were rectified, as explained by the Magistrate.[19]
[19] Magistrate’s judgment at [91]-[94].
The documents in MFI-A1 and MFI-A2 are of minimal, if any, probative value and I decline to admit them on the appeal.
Sentence appeal
The appeal with respect to the good behaviour bond, relies on the contentions that the offence of driving disqualified was the applicant’s first such offence and that the length of the bond is “extreme”. The applicant has not identified any error of reasoning by the Magistrate and on my reading of the Magistrate’s remarks on penalty I do not see any such error. The applicant’s complaint is one of manifest excess. In considering this ground, I have had regard not just to the length of the bond but also the imposition of the 24 day term of imprisonment (suspended) itself. The Magistrate explained his reasoning for imposing the sentence as follows.[20]
In relation to the charge of resisting police, I note the prior offence but I give it minimal weight given its age and penalty imposed. However, the offending itself was sustained and significant. He made the task of the police officers extremely difficult and, in my view, there was no justification for his conduct. In the circumstances, I consider that the offending for this offence was so serious that the only appropriate penalty is a short term of imprisonment. I sentence the [applicant] to fourteen (14) days imprisonment on this charge.
In relation to the drive disqualified charge, I consider that the offending was contumacious. It was high-handed and done almost immediately upon being disqualified. Whilst it was not a court-imposed disqualification, [the applicant] should not have been, and was, under no illusions as to whether or not he was legally able to drive.
Having regard to the authorities, I consider that personal and general deterrence have a significant role to play. Again, I consider the only appropriate penalty is a short term of imprisonment. Notwithstanding that this a first offence, I sentence the defendant to ten (10) days imprisonment on this charge, to be served cumulatively to the other term of imprisonment I have just imposed. That leads to a head sentence of twenty-four (24) days imprisonment.
I turn to whether the sentence can be suspended. Given the matters raised by [the applicant’s counsel] and the position of prosecution, in my view there is good reason to suspend that term of imprisonment and I will do so upon [the applicant] entering into a bond to be of good behaviour for two (2) years. Given his lack of any serious offending in the past and the fact that he appears to be dealing with his mental health issues of his own accord, I do not impose any other conditions, other than the usual ones to be of good behaviour and firearms conditions. I waive court fees but there is a prosecution fee and victim of crime levies.
[20] Magistrate’s remarks on penalty at p 3.
A sentence will be manifestly excessive if it is such that upon the facts it is unreasonable or plainly unjust.[21] In other words it must be outside the range of sentences available to a sentencing judicial officer with respect to both the offence and the circumstances of the offender in question. In such a case, the sentence will be unreasonable and the sentencing discretion will have miscarried. Manifest inadequacy is a conclusion following a consideration of all matters relevant to fixing a sentence and ordinarily does not permit of “lengthy exposition”.[22]
[21] House v The King (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ).
[22] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
It is necessary to review the impugned sentence against the maximum sentence prescribed, the standards of sentence customarily observed with respect to similar offending, the objective seriousness of the criminal conduct and the personal circumstances of the offender.[23] Having done so, in my view, the sentence imposed by the Magistrate was well within the range available and cannot be characterised as manifestly excessive.
[23] R v Morse (1979) 23 SASR 98 at 99 (King CJ).
The applicant also seeks to appeal against the “loss of demerit points”. This aspect of the appeal is misconceived. Demerit points are incurred by operation of law when certain traffic offences are committed.[24] Demerit points are not imposed by a Magistrate as part of the sentence. However, in accordance with subsection 98B(4) of the Motor Vehicles Act 1959 (SA), the applicant was entitled “forwith” upon his conviction for the two offences which incurred demerit points,[25] to attempt to satisfy the Magistrate by evidence on oath that either offence was trifling or that other proper cause existed, in which case the Magistrate would have had the discretion to order that a reduced number or no demerit points were to be incurred. The applicant did not avail himself of this opportunity. Had he been unrepresented at the time, further considerations may have arisen before me.[26] However, the applicant was represented by counsel at the time sentencing submissions were made and at the time convictions were recorded. It is now too late to give effect to subsection 98B(4).
[24] Motor Vehicles Act 1959 (SA), section 98B(1).
[25] Failing to comply with a police direction in relation to a breath analysis test – 6 demerit points; driving contrary to the terms of a defect notice – 3 demerit points.
[26] Shillabeer v Linnane (1979) 22 SASR 382; Chan v Police [2014] SASC 35.
Conclusion
The appeals both as to the convictions and the sentence are without merit. An extension of time within which to appeal would be futile and is refused. The appeals are dismissed. The respondent seeks its costs of the appeals in the amount of $750. Ordinarily this order would be made.[27] However, I will hear from the applicant as to whether or not there is good reason not to award costs in this matter.
[27] Joint Criminal Rules 2022, rule 191.3.
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