WILLIS v Police - [2009] SASC 230

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
WILLIS v POLICE
[2009] SASC 230
Judgment of The Honourable Justice Nyland
12 August 2009
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
Appellant charged on complaint with drive disqualified and driving unregistered motor vehicle – earlier conviction for drive disqualified and other driving offences – appellant unaware licence required to drive on bush track inaccessible to public – following altercation with another vehicle appellant drove on Government Road – offence of drive unregistered motor vehicle not punishable by imprisonment – Magistrate fell into error in applying s 18A Sentencing Act and impose sentence of imprisonment for both offences – failure by Magistrate to fully consider all circumstances of offending – lower level of contumacious offending – appeal allowed – sentence of imprisonment imposed for drive disqualified suspended on condition appellant enter into bond to be of good behaviour for 18 months – convicted without penalty on drive unregistered vehicle charge.
Motor Vehicles Act 1959 ss 9, 91; Sentencing Act 1988 s 18A, referred to.
Hermel v Police (2000) 76 SASR 336; R v Knowles [2007] SASC 185, applied.
Crafter v Police [2001] SASC 336; R J v Police [2006] SASC 153, distinguished.
Sheean v Police (1999) 106 A Crim R 590; Cadd v Police (1997) 70 SASR 150; Bates v Police (1997) 70 SASR 66; Lammeeren v Police (1999) 28 MVR 549; Harshazi v Police (1998) 71 SASR 316, considered.

WILLIS v POLICE
[2009] SASC 230
Magistrates Appeal

NYLAND J: The appellant was charged on complaint that on 17 August 2008 at Andamooka, he drove a motor vehicle on a road, namely Government Road, while he was disqualified from holding or obtaining a licence, contrary to s 91 Motor Vehicles Act 1959 (“MVA”). He was further charged that on the same date and at the same place, he drove a vehicle, namely a sedan, the registration of such motor vehicle not then being in force under the provisions of Part 2 MVA, contrary to the provisions of s 9 MVA.
On 8 April 2009 the appellant appeared before a Stipendiary Magistrate in the Whyalla Magistrates Court and pleaded guilty to both charges. He was represented by Mr Weiss of counsel, who made submissions on his behalf. The appellant admitted that on 7 August 2007 he had been convicted of the offences of drive disqualified, driving under the influence, attempting to drive with excess blood alcohol and driving without due care, all of which had been committed on 21 April 2007. On that occasion, the appellant was fined and disqualified from holding or obtaining a driver’s licence for a period of 16 months.
It appeared that about 6.30 pm on Sunday, 17 August 2008 the appellant was driving his motor car on Government…

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 WILLIS v Police

Details

AGLC: WILLIS v Police [2009] SASC 230
Case: [2009] SASC 230
Decision Date: 12 August 2009

CaseChat Overview and Summary

Willis has appealed against his conviction and sentence, brought before the Supreme Court of South Australia. Willis was charged with driving while disqualified and driving an unregistered vehicle, following an altercation with another vehicle on a bush track that is not accessible to the public. Willis argued that he was unaware that a licence was required to drive on such a track, and subsequently drove on a government road. The court needed to determine whether the Magistrate correctly applied the sentencing provisions of the Sentencing Act and whether the sentence imposed was appropriate.

The court identified that the Magistrate erred in applying section 18A of the Sentencing Act by imposing a sentence of imprisonment for the offence of driving an unregistered vehicle, which is not punishable by imprisonment. The court also found that the Magistrate did not fully consider all the circumstances of the offending, including the lower level of contumacious offending. The appeal was allowed, and the sentence of imprisonment for the offence of driving while disqualified was suspended on the condition that Willis enter into a bond to be of good behaviour for 18 months. Willis was convicted without penalty on the charge of driving an unregistered vehicle.

This case highlights the importance of correctly applying the law and considering all relevant circumstances when imposing a sentence. The court's decision demonstrates the need for Magistrates to carefully consider the appropriate sentence for each offence, taking into account the specific circumstances of the case. The outcome of this appeal serves as a reminder to practitioners to ensure that the correct legal principles are applied when sentencing offenders.

Orders