Williams v Police - [2005] SASC 486

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WILLIAMS v POLICE
Judgment of The Honourable Justice Duggan
22 December 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Appeal against sentence imposed by a magistrate for a series of admitted driving offences committed over a period of approximately 4 years - offences include several counts of driving whilst unlicensed and driving with prescribed concentration of alcohol - whether offence dealt with ex parte pursuant to Summary Procedure Act 1921 s 62A is a first offence for sentencing purposes under Road Traffic Act 1961 if defendant not sentenced before commission of further offences - whether sentence manifestly excessive - whether sentence should have been suspended - sentence of 4 months not manifestly excessive and no error found in magistrate's decision not to suspend the sentence - whether court should have refrained from imposing fines by reason of Criminal Law (Sentencing) Act, s 13 - court to consider evidence on this issue - appeal on all other grounds dismissed.
Summary Procedure Act 1921 s 62A; Criminal Law (Sentencing) Act 1988 s 13, s 18A; Road Traffic Act 1961 S 47, s 47B; Justices Act 1921 S 70, referred to.
Ryszawa v Samuels [1969] SASR 158; Neal v The Queen (1982) 149 CLR 305, applied.
Police v Nowak (2000) 76 SASR 551; McNicholl v Tothill (1988) 47 SASR 134; The Queen v Roberts-Smith; Ex parte Kowald (1977) 16 SASR 147; Gray v Jones [1948] SASR 201, discussed.

WILLIAMS v POLICE
[2005] SASC 486
Magistrates Appeal

DUGGAN J. The appellant has appealed against the sentences imposed upon him in the Port Augusta Magistrates Court for a series of admitted traffic offences.
The appellant is a 29 year old Aboriginal man who resides at Yalata, approximately 200 kilometres from Ceduna. He was sentenced on 21 July 2005 for the following offences:
(1)On 8 June 2001, the appellant was seen driving in an erratic manner on a road north-west of Yalata. He pleaded guilty to driving whilst under the influence of intoxicating liquor, driving without due care and driving without a licence.
(2)On 19 October 2001, the appellant was apprehended by police driving a motor vehicle at Port Augusta. He was subsequently charged with driving with a faulty headlight, driving without a licence and driving with the prescribed concentration of alcohol. His blood alcohol level was 0.142 grams per 100 millilitres of blood.
(3)On 19 March 2003, the appellant drove a motor vehicle near Ceduna while there was present in his blood 0.094 grams per 100 millilitres of blood. He was charged with driving with the prescribed concentration of alcohol and driving without a licence.
(4)On 2 July 2003, the appellant was apprehended while driving on the wharf at Thevenard. A blood alcohol test established that he was driving with 0.278 grams of alcohol per 100 millilitres of blood. He…

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 Williams v Police

Details

AGLC: Williams v Police [2005] SASC 486
Case: [2005] SASC 486
Decision Date: 22 December 2005

CaseChat Overview and Summary

Williams has appealed against the sentence imposed by a magistrate for a series of driving offences he committed over a period of approximately 4 years. The offences included several counts of driving while unlicensed and driving with a prescribed concentration of alcohol. The central issues before the court were whether the offence dealt with ex parte pursuant to the Summary Procedure Act 1921 s 62A should be considered a first offence for sentencing purposes under the Road Traffic Act 1961 if the defendant was not sentenced before committing further offences, whether the sentence was manifestly excessive, and whether the sentence should have been suspended.

The court found that there was no error in the magistrate's decision that the offence was not a first offence for sentencing purposes, as the defendant had not been sentenced for the previous offences before committing the current ones. The court also held that the sentence of 4 months was not manifestly excessive, considering the cumulative nature of the offences and the defendant's history of reoffending. The court further found that there was no error in the magistrate's decision not to suspend the sentence, as the circumstances did not warrant such a course of action. Finally, the court determined that it was not necessary to refrain from imposing fines pursuant to the Criminal Law (Sentencing) Act 1985 s 13, as the evidence did not support this course of action.

Williams' appeal was dismissed on all grounds except for the consideration of fines pursuant to the Criminal Law (Sentencing) Act 1985 s 13, which the court found should be reconsidered. The sentence of 4 months imprisonment was upheld.

Orders