Wimmer v Police - [2013] SASC 95

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WIMMER v POLICE
[2013] SASC 95
Judgment of The Honourable Justice Gray
25 June 2013
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING WITHOUT DUE CARE AND ATTENTION OR REASONABLE CONSIDERATION FOR OTHER ROAD USERS - DRIVING WITHOUT DUE CARE AND ATTENTION
TRAFFIC LAW - OFFENCES - PROCEDURE - SENTENCE AND PENALTY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - EVIDENCE - OTHER MATTERS
Appeal against conviction and sentence - defendant convicted by Magistrate of aggravated driving without due care contrary to section 45 of the Road Traffic Act 1961 (SA) - defendant was turning motor vehicle right from Findon Road - motorcycle was travelling in opposite direction on Findon Road - motorcycle collided with defendant's vehicle - motorcyclist sustained fatal injuries - Magistrate concluded that defendant failed to take any or adequate lookout when turning right - Magistrate imposed two months suspended sentence of imprisonment and disqualified defendant from holding a driver's licence for 12 months - whether Magistrate erred in excluding beyond reasonable doubt the possibility that motorcyclist had been driving without headlights on - whether Magistrate erred in failing to exercise discretion not to record a conviction - whether imposition of term of imprisonment was manifestly excessive.
Held: Appeal against conviction dismissed - Magistrate's conclusion that the possibility that the motorcyclist had been driving without headlights had been excluded beyond reasonable doubt was open on the evidence - no error in Magistrate's failure to exercise discretion not to record a conviction - appeal against sentence allowed - Magistrate failed to have proper regard to section 11 of the Criminal Law (Sentencing) Act 1988 (SA) - sentence of imprisonment is a sentence of last resort.
Road Traffic Act 1961 (SA) s 45; Criminal Law (Sentencing) Act 1988 (SA) s 11, s 16 and s 39, referred to.

WIMMER v POLICE
[2013] SASC 95
Magistrates Appeal: Criminal
GRAY J.

This is an appeal against conviction and sentence.
The defendant and appellant, Jason Alfred Wimmer, was charged on complaint with the offence of driving without due care contrary to section 45 of the Road Traffic Act 1961 (SA).[1] It was alleged that there was a circumstance of aggravation in that the offence caused a death.
[1] Section 45 of the Road Traffic Act 1961 (SA) relevantly provides:
(1)A person must not drive a vehicle without due care or attention or without reasonable consideration for other persons using the road.
(2)If a court convicts a person of an offence against this section that is an aggravated offence, the following provisions apply:
(a)     the maximum penalty for the offence is 12 months imprisonment; and
(b)    the court must order that the person be disqualified from holding or obtaining a driver's licence for such period, being not less than 6 months, as the court thinks fit; and
(c)     the disqualification prescribed by paragraph (b) cannot be reduced…

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 Wimmer v Police

Details

AGLC: Wimmer v Police [2013] SASC 95
Case: [2013] SASC 95
Decision Date: 25 June 2013

CaseChat Overview and Summary

In the case of Wimmer v Police, the appellant contested both their conviction and the sentence imposed by the Magistrate. The appellant was found guilty of aggravated driving without due care and attention, contrary to section 45 of the Road Traffic Act 1961 (SA), following a collision with a motorcycle that resulted in fatal injuries to the motorcyclist. The collision occurred as the appellant was turning their vehicle right from Findon Road. The Magistrate concluded that the appellant had failed to take any or adequate lookout when making the turn and subsequently imposed a two-month suspended sentence of imprisonment and disqualified the appellant from holding a driver’s licence for 12 months.

The legal issues before the court involved whether the Magistrate erred in concluding that the possibility that the motorcyclist had been driving without headlights had been excluded beyond reasonable doubt. Additionally, the court examined whether the Magistrate erred in failing to exercise their discretion not to record a conviction and whether the term of imprisonment imposed was manifestly excessive. These issues revolved around the interpretation of the evidence, the application of sentencing principles, and the appropriateness of the penalty imposed.

The court held that the Magistrate's conclusion regarding the exclusion of the possibility that the motorcyclist had been driving without headlights was supported by the evidence. Consequently, the appeal against the conviction was dismissed. However, regarding the sentence, the court found that the Magistrate did not have proper regard to section 11 of the Criminal Law (Sentencing) Act 1988 (SA), which mandates that imprisonment is a sentence of last resort. Given all the circumstances of the collision and the personal antecedents of the appellant, the court deemed the sentence of imprisonment to be inappropriate. Therefore, the appeal against the sentence was allowed, and the term of imprisonment was set aside. In its place, a fine of $1,000.00 was imposed.

In conclusion, the court dismissed the appeal against the conviction but allowed the appeal against the sentence. The conviction was upheld, but the term of imprisonment was set aside and replaced with a fine of $1,000.00. The other orders of the Magistrate were confirmed.

Orders

Orders of the court

Held: Appeal against conviction dismissed - Magistrate's conclusion that the possibility that the motorcyclist had been driving without headlights had been excluded beyond reasonable doubt was open on the evidence - no error in Magistrate's failure to exercise discretion not to record a conviction - appeal against sentence allowed - Magistrate failed to have proper regard to section 11 of the Criminal Law (Sentencing) Act 1988 (SA) - sentence of imprisonment is a sentence of last resort.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

I consider that the Magistrate failed to have proper regard to section 11 of the Sentencing Act. When regard is had to all the circumstances of the collision, and to the personal antecedents of the defendant, I consider that the sentence of imprisonment should be set aside. A fine of $1,000.00 should be imposed.Conclusion The appeal against conviction is dismissed. The appeal against sentence is allowed. The order of imprisonment imposed by the Magistrate is set aside. In lieu, an order is made imposing a fine of $1,000.00. Otherwise the orders of the Magistrate are confirmed.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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