WILLIS v Police - [2006] SASC 245

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
WILLIS v POLICE
[2006] SASC 245
Judgment of The Honourable Justice Perry (ex tempore)
15 August 2006
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - OFFENCES
The appellant appealed against a custodial sentence of 4 weeks imprisonment imposed on a charge of driving whilst disqualified – after a long bout of drinking at a party, he gave a lift home to a relative, thinking that he was more sober than the relative and was fit to drive, although he knew that he was disqualified from driving – as well as the charge of driving whilst disqualified, he pleaded guilty to driving with the prescribed concentration of alcohol, namely 0.115% - the appellant, aged 30 years, had a long history of traffic offences, including 2 convictions for driving without a licence and 2 other convictions for driving whilst disqualified – held on appeal that whether or not the driving was properly characterised as contumacious, the sentencing magistrate did not err in refusing to suspend the sentence – observations against treating the answer to the question whether in such circumstances the driving was contumacious as some sort of litmus test or talisman which inevitably resolved the issue whether or not to suspend – all of the circumstances must be taken into account – even if contumacious, the court may not necessarily refuse to suspend, and if not contumacious, the court might nonetheless impose a custodial term – in all the circumstances, particularly bearing in mind the appellant’s prior record, the magistrate did not err in exercising his discretion not to suspend the sentence of imprisonment – further observations as to the relevance of the impact of a sentence of imprisonment on dependants, including small children – appeal dismissed.
Motor Vehicles Act 1959 s 91; Criminal Law (Sentencing) Act 1988 s 38; Road Traffic Act 1961 s 47a, referred to.
Neill v Police (unreported) [1999] SASC 270; R v Penno (2004) 236 LSJS 457, considered.

WILLIS v POLICE
[2006] SASC 245
Magistrates Appeal: Criminal

PERRY J. (ex tempore) The appellant appeals against the penalty imposed upon him following his plea of guilty to driving whilst disqualified; driving an unregistered and uninsured motor vehicle; and driving a motor vehicle whilst there was present in his blood the prescribed concentration of alcohol as defined in s 47a of the Road Traffic Act1961 (“the Act”).
All four offences relate to an occasion when the appellant was observed on 25 February 2005 whilst driving south on Victoria Parade at Port Augusta. When questioned by police the appellant admitted that his licence was disqualified. Further police checks revealed that the registration of the vehicle had expired on 21 January 2005 and that the vehicle was uninsured.
The police officers noticed a smell of alcohol. An alcotest proved positive. A subsequent breath analysis test returned a result of 0.115 grams of alcohol per 210 litres of breath.
After hearing submissions from counsel for the appellant…

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: WILLIS v Police [2006] SASC 245
Case: [2006] SASC 245
Decision Date: 15 August 2006

CaseChat Overview and Summary

The appellant in Willis v Police appealed against a sentence of 4 weeks imprisonment, imposed for driving while disqualified and driving with a blood alcohol concentration above the legal limit. The appellant, aged 30, had a history of traffic offences, including two convictions for driving without a licence and two other convictions for driving while disqualified. The appeal focused on the decision of the sentencing magistrate not to suspend the custodial sentence, despite the appellant’s claim that his driving was not contumacious.

The legal issues before the court included whether the driving was properly characterised as contumacious and if the sentencing magistrate erred in not suspending the sentence. The court noted that the characterisation of the driving as contumacious was not a definitive factor in determining whether to suspend a sentence. Instead, all circumstances, including the appellant's prior record and the impact of the sentence on his dependants, needed to be considered. The court held that the sentencing magistrate did not err in exercising discretion not to suspend the sentence, particularly considering the appellant's extensive history of traffic violations.

The reasoning of the court emphasised that even if the driving was deemed contumacious, it did not automatically preclude the possibility of a non-custodial sentence. Conversely, if the driving was not contumacious, it did not necessarily mean that a custodial term could not be imposed. The court underscored that the sentencing magistrate had appropriately considered all relevant factors, including the appellant's prior criminal history and the potential impact of imprisonment on his dependants. Consequently, the court found no error in the magistrate's decision and dismissed the appeal.

The final orders confirmed the dismissal of the appeal, upholding the original sentence of 4 weeks imprisonment for the appellant. The court's decision highlighted the importance of a holistic approach to sentencing, taking into account all relevant circumstances, rather than relying on a single factor such as the characterisation of the driving as contumacious.

Orders