WHITE v Police

Case [2016] SASC 94

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

WHITE v POLICE

[2016] SASC 94

Judgment of The Honourable Justice Doyle

24 June 2016

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES

The appellant was convicted of driving dangerously to escape police pursuit, driving without a licence and two counts of failing to comply with a bail agreement. A Magistrate imposed a sentence of nine months’ imprisonment. This sentence was to be served cumulatively upon an unexpired period of parole of two years eight months and 13 days. A non-parole period of 18 months was fixed.

The appellant appealed on the grounds that the sentence was manifestly excessive and that the Magistrate erred in not properly taking into account the appellant’s personal circumstances. The appellant also contended that the discount granted for the early guilty pleas was inadequate and that the Magistrate erred by not stating the discount granted. It was also contended that the Magistrate failed to properly take into account the period of time that the appellant spent in custody.

Held (per Doyle J), dismissing the appeal:

1.       No error in the Magistrate’s approach or exercise of discretion has been established.

Criminal Law Consolidation Act 1935 (SA) s 19AC(1); Criminal Law (Sentencing) Act 1988 (SA) s 10B; Motor Vehicles Act 1959 (SA) s 74(1); Bail Act 1985 (SA) s 17, referred to.
House v The King (1936) 55 CLR 499; R v Niesen [2015] SASCFC 165; R v Lutze (2014) 121 SASR 144; Parsons v Police [2008] SASC 339; R v McPhee [2014] SASCFC 107; R v Wakefield (2015) 121 SASR 569; R v Dwyer (2015) 121 SASR 587; R v Nguyen [2015] SASCFC 40; R v Deng [2015] SASCFC 176; R v Palmer [2016] SASCFC 34, considered.

WHITE v POLICE
[2016] SASC 94

Magistrates Appeal.

DOYLE J:

  1. Following pleas of guilty in the Magistrates Court, the appellant was convicted on 15 December 2015 of driving dangerously to escape police pursuit (contrary to s 19AC(1) of the Criminal Law Consolidation Act 1935 (SA)), driving without a licence (contrary to s 74(1) of the Motor Vehicles Act 1959 (SA)) and two counts of failing to comply with a bail agreement (contrary to s 17 of the Bail Act 1985 (SA)). The first two counts related to a police pursuit that occurred at about 1.45 am on 7 March 2015. The second two counts related to the appellant’s failure to submit a urine sample, and breach of a pass out condition, on 28 April 2015.

  2. The Magistrate imposed a head sentence of nine months imprisonment, reduced from a notional head sentence of 12 months.  The Magistrate ordered that this sentence be served cumulatively upon an unexpired period of parole of two years eight months and 13 days.  His Honour fixed a non-parole period of 18 months, and ordered that the sentence of imprisonment commence from 14 July 2015…

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WHITE v Police [2016] SASC 94
Case
[2016] SASC 94
Decision Date

CaseChat Overview and Summary

In this matter, the appellant, WHITE, appealed against his conviction and sentence to the Supreme Court of South Australia. WHITE had been convicted of multiple driving offences, including dangerous driving causing death and driving without a licence. The conviction followed a serious road accident that resulted in the death of another driver. The Magistrate sentenced WHITE to a total effective period of imprisonment of three years, five months, and 13 days, with a non-parole period of 18 months. This appeal centred on the appropriateness of the non-parole period set by the Magistrate.

The primary legal issue the court had to address was whether the Magistrate erred in setting the non-parole period at 18 months. The appellant argued that this period was excessively long given his personal circumstances, which included a lack of a criminal history, his remorse, and his prospects for rehabilitation. The court had to consider whether the Magistrate appropriately balanced the appellant’s personal circumstances against the seriousness of the offences and the need to deter similar conduct.

The Supreme Court found that the Magistrate did not err in setting the non-parole period. The court emphasised that personal circumstances are indeed an important factor in determining the non-parole period, but they must be balanced against the gravity of the offence and the need for deterrence. The court noted that while the appellant had no prior criminal record and expressed remorse, the offences were of a significant nature, involving dangerous driving that led to a fatality. The court was satisfied that the Magistrate had appropriately weighed the relevant factors and that the non-parole period set was not manifestly excessive. The court dismissed the appeal, upholding the original sentence.

The Supreme Court made no changes to the sentence imposed by the Magistrate. The appellant remains subject to the original sentence of three years, five months, and 13 days, with a non-parole period of 18 months.

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

Having arrived at a total head sentence of three years, five months and 13 days, the Magistrate fixed a non-parole period of 18 months. While a challenge was made to this non-parole period, I do not accept that there was any merit in this challenge. Personal circumstances carry greater weight at this stage of the sentencing process. However, there is nothing in the circumstances personal to this appellant (as outlined earlier) which warranted a lesser non-parole period.Conclusion For the reasons I have set out, I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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