WU v Police - [2006] SASC 48

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
WU v POLICE
Judgment of The Honourable Justice Bleby (ex tempore)
16 February 2006
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
Appeal against sentence - appellant found guilty by Magistrate of driving at a speed or in a manner dangerous to the public contrary to s 46 of the Road Traffic Act 1961 (SA) - "trifling" application under s 46(3)(b) of the Road Traffic Act refused by Magistrate - appellant fined $400 and disqualified from holding a driver's licence for a period of 6 months - Criminal Law (Sentencing) Act, ss 17 and 20 - whether Magistrate erred in refusing application under s 46(3)(b) of the Road Traffic Act - finding that offence was not trifling open on evidence - appeal dismissed.
Road Traffic Act 1961 (SA) s 46(1), s (3)(b); Criminal Law Consolidation Act 1935 (SA) s 29(3); Criminal Law (Sentencing) Act 1988 (SA) s 17, s 20, referred to.
Janz v Woolven (1990) 55 SASR 239; Przybytinak v Police (1988) 100 A Crim R 196; Siviour-Ashman v Police (2003) 85 SASR 23, applied.

WU v POLICE
[2006] SASC 48
Magistrates Appeal: Criminal
BLEBY J (ex tempore)
Introduction

This is an appeal against sentence. The appellant was charged with two offences. The first was that on 22 August 2004 at Modbury Heights, he drove a motor vehicle at the alleged victim, knowing that the act was likely to cause him harm, and intending to cause harm, or being recklessly indifferent as to whether any such harm was caused. That is an offence against s 29(3) of the Criminal Law Consolidation Act 1935 (SA). The second alleged offence was that on 22 August 2004 at Modbury Heights, he drove a motor vehicle in a manner dangerous to the public. This is an offence against s 46 of the Road Traffic Act 1961. Both charges arose from the same conduct and were essentially charged in the alternative.
The appellant pleaded not guilty, and the matter proceeded to trial before a magistrate. The appellant was acquitted of the first offence. The magistrate said in her reasons that she was not satisfied that, by driving in the manner he did, the appellant intended to cause harm to the alleged victim or that he was recklessly indifferent to such harm being caused.
However, the magistrate was satisfied that the appellant drove in a manner dangerous to the public. He was convicted of the offence of driving in a manner or at a speed dangerous to the public contrary to s 46(1) of the Road Traffic Act 1961.
Counsel for the appellant made an application under s 46(3)(b) of the Road Traffic Act that the offence for which the appellant was found guilty be considered “trifling” within the meaning of that section. The magistrate refused that application. The appellant was fined $400.00, was ordered to pay court fees and levies totalling $159.00 and was…

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 WU v Police

Details

AGLC: WU v Police [2006] SASC 48
Case: [2006] SASC 48
Decision Date: 16 February 2006

CaseChat Overview and Summary

The appellant, WU, was found guilty by a Magistrate of driving at a speed or in a manner dangerous to the public in contravention of section 46 of the Road Traffic Act 1961 (SA). The case was brought to the attention of the court as an appeal against the sentence imposed by the Magistrate, which included a fine of $400 and a six-month disqualification from holding a driver's licence. The central legal issue for the court to address was whether the Magistrate erred in refusing the application under section 46(3)(b) of the Road Traffic Act, which pertains to the classification of the offence as "trifling".

The court considered whether the Magistrate's decision to classify the offence as not trifling was open on the evidence presented. Given the circumstances of the case and the relevant statutory provisions, the court found that the Magistrate's decision was indeed justified based on the evidence. The court held that the nature of the offence, as well as the potential danger it posed to the public, warranted a sentence that was not considered trifling. Consequently, the appeal was dismissed by the court.

In dismissing the appeal, the court underscored the importance of considering the specific facts and circumstances of each case when determining the appropriate sentence. The court further emphasised that the classification of an offence as trifling should only be applied in cases where the circumstances are such that the public interest would not be served by a more severe penalty. The decision reinforces the principle that courts must carefully assess each case to ensure that the sentence reflects the seriousness of the offence and its potential impact on public safety.

The final orders of the court were to dismiss the appeal, affirming the sentence imposed by the Magistrate. The appellant was thus required to pay the $400 fine and remain disqualified from holding a driver's licence for a period of six months. This outcome underscores the importance of adhering to traffic laws and the potential consequences of driving in a manner that endangers the public.

Orders