WRIGHT v Police - [2005] SASC 462

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WRIGHT v POLICE
Judgment of The Honourable Justice Duggan
6 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 offence of driving whilst disqualified contrary to Motor Vehicles Act 1959, s 91 - appellant sentenced to 4 months imprisonment - ordered to serve period of 1 month imprisonment and remaining 3 months was suspended upon condition that appellant enter into a good behaviour bond - held that the offending was contumacious but that sentence was manifestly excessive - sentence of imprisonment set aside and in lieu thereof the appellant sentenced to 21 days' imprisonment.
Motor Vehicles Act 1959 s 91, s 74(1), (2), referred to.
Police v Cadd (1997) 69 SASR 150; Rhodes v Police [1999] SASC 191, applied.

WRIGHT v POLICE
[2005] SASC 462
Magistrates Appeal

DUGGAN J. The appellant pleaded guilty to the offences of driving a motor vehicle while disqualified from holding or obtaining a driver’s licence contrary to s 91 of the Motor Vehicles Act 1959 (“the Act”) and driving a motor vehicle while not wearing a seat belt. The offences took place at Seaford Rise on 4 March 2005. The appellant was convicted on each count. He was imprisoned for four months on the first count, but an order was made that he serve a period of one month imprisonment and that the remaining three months be suspended on condition that he enter into a bond to be of good behaviour. No penalty was imposed in relation to the second count. The appellant has appealed against the sentence imposed on the first count.
The appellant was 26 years old at the time of the offence. The disqualification from holding or obtaining a driving licence was imposed on 30 August 2004 when he was convicted of driving whilst unlicensed and failing to obey a red light. These offences had been committed on 25 June 2004. The appellant was fined $500 and disqualified from driving for a period of three years.
When the present matters were before the Magistrates Court the prosecution alleged previous convictions for the offences of driving with excess blood alcohol level and driving without a licence. These offences were committed by the appellant on 18 January 2001 and sentence was passed on 10 May 2002. The appellant was fined $700 on the first count and $50.00 on the second count. He was disqualified from holding or obtaining a driving licence for 12 months.
The appellant had also been convicted on 9 January 2001 for offences of driving while unlicensed and driving a motor vehicle contrary to a defect notice. He was fined $250 for these offences.
The appellant was warned as to the consequences of driving while disqualified when he appeared before the court on 30 August 2004 and 10 May 2002.

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

Case: [2005] SASC 462
Decision Date: 6 December 2005

CaseChat Overview and Summary

In Wright v Police, the appellant challenged the sentence imposed by a magistrate for driving while disqualified under the Motor Vehicles Act 1959. The appellant was found guilty of the offence and sentenced to four months imprisonment, with one month to be served immediately and the remaining three months suspended on the condition that the appellant enter into a good behaviour bond. Dissatisfied with the sentence, the appellant appealed to a higher court, arguing that the sentence was manifestly excessive.

The court was required to determine whether the sentence imposed by the magistrate was manifestly excessive and, if so, to substitute a more appropriate sentence. The court had to consider the nature of the offence, the appellant's criminal history, and the circumstances surrounding the offence, including the fact that the offending was contumacious. The court also had to consider the principle of proportionality in sentencing and whether the sentence imposed was consistent with the principles of sentencing for similar offences.

The court found that the offending was contumacious, but that the sentence imposed by the magistrate was manifestly excessive. The court considered the appellant's criminal history and the fact that the appellant had previously been convicted of a similar offence. The court also considered the principle of proportionality in sentencing and found that a sentence of four months imprisonment was disproportionate to the offence. In lieu of the original sentence, the court sentenced the appellant to 21 days' imprisonment.

The court set aside the original sentence and in its place sentenced the appellant to 21 days' imprisonment. The court also ordered that the appellant be released on good behaviour bond for the remaining period of the original sentence. The court's decision highlights the importance of proportionality in sentencing and the need for courts to carefully consider the circumstances of each case when imposing a sentence.

Orders