ZAFRY v Police - [2009] SASC 191

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ZAFRY v POLICE
[2009] SASC 191
Judgment of The Honourable Justice Nyland
2 July 2009
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - OFFENCES
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN THE BLOOD
TRAFFIC LAW - REGISTRATION AND LICENSING OF PRIVATE VEHICLES - UNREGISTERED VEHICLES
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
Appellant charged on two separate complaints - one occasion of driving with excess level of blood alcohol (PCA) and driving unregistered motor vehicle - another occasion of driving unregistered and driving with excess level of blood alcohol and driving while disqualified - offences committed approximately six weeks apart - plea of guilty to all charges - immediate custodial sentence of 28 days imposed by Magistrate - whether sentence should have been suspended - test applied by Magistrate whether it was appropriate to suspend - whether there was good reason to suspend.
Appeal allowed - finding that the appellant's offending was contumacious BUT substantial changes in personal circumstances of appellant since commission of offences - question of rehabilitation of appellant - substantial impact upon dependants of appellant - good reason to suspend sentence of 28 days imprisonment upon condition that appellant enter into bond in his own recognisance in the sum of $200 to be of good behaviour for a period of two years.
Road Traffic Act 1961 s 47B(1)(a); Motor Vehicles Act ss 9, 91, referred to.
Police v Maxwell (1998) 102 A Crim R 374; Woods v Samuels (1974) 8 SASR 465; R v Fowler [2006] SASC 18; R v Locke (1973) 6 SASR 298, applied.
Mill v Police [2007] SASC 253; Nash v Police [2009] SASC 112; G v Police (1999) 74 SASR 165; Sheean v Police [1999] SASC 187; Bates v Police (1997) 70 SASR 66; Veen v R No 2 (1988) 164 CLR 465; Barnes v Police [2006] SASC 295; Crafter v Police [2001] SASC 336; Police v Cadd (1997) 69 SASR 150, considered.

ZAFRY v POLICE
[2009] SASC 191
Magistrate’s Appeal

NYLAND J: This is an appeal against sentence. The appellant was charged on two complaints. On the first complaint the appellant was charged with driving with an excess level of blood alcohol (PCA) on 11 August 2008, contrary to the provisions of s 47B(1)(a) Road Traffic Act 1961. On the second complaint the appellant was charged with three offences committed on 20 September 2007. First, a charge of driving unregistered, contrary to s 9 Motor Vehicles Act 1959, secondly, PCA, and thirdly, driving disqualified contrary to s 91 Motor Vehicles Act 1959.
On 24 October 2008 the appellant appeared before a Stipendiary Magistrate in the Magistrates Court at Adelaide. He pleaded guilty to all four offences. On the first complaint, that is the offence…

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 ZAFRY v Police

Details

AGLC: ZAFRY v Police [2009] SASC 191
Case: [2009] SASC 191
Decision Date: 2 July 2009

CaseChat Overview and Summary

The appeal by the appellant, ZAFR Y, against the sentence imposed by the Magistrate for driving while disqualified, was heard in the court. The appellant was charged on two separate occasions with driving with a prescribed concentration of alcohol in the blood and driving an unregistered vehicle. The offences occurred approximately six weeks apart, and the appellant pleaded guilty to all charges. The Magistrate imposed an immediate custodial sentence of 28 days, and the appellant argued that the sentence should have been suspended. The appellant contended that there was good reason to suspend the sentence and that the Magistrate failed to exercise her discretion appropriately.

The legal issues before the court were whether the sentence should have been suspended and if there was good reason to do so. The court was required to consider the appropriate test to apply in determining whether it was appropriate to suspend the sentence and whether there was good reason to suspend the sentence of 28 days imprisonment. The court needed to assess the appellant's personal circumstances and the impact of the sentence on his dependants.

The court found that the appellant's offending was contumacious, but there were substantial changes in his personal circumstances since the commission of the offences. The court considered the question of the appellant's rehabilitation and the substantial impact upon his dependants. The court concluded that there was good reason to suspend the sentence of 28 days imprisonment upon the condition that the appellant enter into a bond in his own recognisance in the sum of $200 to be of good behaviour for a period of two years. The appeal was allowed, and the sentence was suspended on the specified conditions.

The court made an order that the sentence of 28 days imprisonment imposed by the Magistrate for the drive disqualified charge be suspended, and the appellant be required to enter into a bond in his own recognisance in the sum of $200 to be of good behaviour for a period of two years.

Orders

Orders of the court

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Background

Background to the litigation

This appeal relates only to the order for imprisonment imposed by the learned Magistrate with respect to the drive disqualified charge. The appellant asserts that the sentence is manifestly excessive as good reason existed to suspend the sentence of imprisonment, but the Magistrate failed to exercise her discretion so to do. Background On 11 August 2007, the appellant had been out drinking alcohol with a group of friends after work. He did not intend to drive but one of the members of the group did not want to leave his car in town. As the appellant believed that his friend was more intoxicated than he, the appellant decided to drive his friend’s car home. In due course the appellant was stopped by police. A blood alcohol reading disclosed a reading of .19. Due to that reading, the appellant was issued with an instant disqualification notice for a period of 12 months. On 19 September 2007 the appellant was at his girlfriend’s house. He consumed some alcohol after celebrating obtaining a new job. He said he had some drinks as he believed he did not have to work the following day. Later that night, however, he received a text message advising him that he was required to be at work the next morning. He therefore decided to drive home in order to change and prepare for work. He made that decision, notwithstanding that he was at that time disqualified from holding or obtaining a driver’s licence as a result of the disqualification imposed on 11 August 2007. At about 4.45 am, as he was on his way home, the appellant was stopped by police who noticed that the appellant’s car registration had expired. The appellant was subsequently alco-tested and returned a reading of .172. He told the police that the vehicle was not his and he did not know it was unregistered until he was stopped by them. He admitted that he knew it was an offence to drive with PCA and also to drive when disqualified. The appellant has three prior convictions for PCA offences, recorded on 10 January 1996, 27 March 1997 and 12 February 2002. The appellant also has a prior conviction for driving disqualified, which was committed on 6 October 1996. On 10 January 1997 he was convicted with respect to that offence and was ordered to serve five days imprisonment.Reasons of Magistrate In her remarks on penalty, the learned Magistrate noted the appellant’s earlier convictions and commented:It is quite plan (sic) you must have been aware of the risk you ran at the time when you drove on that second occasion, given you previously had a period of imprisonment imposed upon you for driving whilst disqualified. She noted that the appellant had now stopped drinking and had disassociated himself from the people with whom he had been drinking and that he had become a father a few months earlier. She referred to the fact that since the commission of these offences the appellant had commenced a new position of employment and had a key role in a number of multi million dollar projects. She was aware that a lengthy period of disqualification would have an impact on his employment. She had regard to a number of character references which indicated that the appellant more recently had a change of attitude and was putting a great deal of energy into overcoming his problems. She also took into account his plea of guilty. She considered however that in all the circumstances it was “not appropriate” to suspend the period of imprisonment she was about to impose. The learned Magistrate referred to the fact that the appellant had previously been before the court for driving disqualified and on that occasion had also been drink driving. She pointed out that this was not a case of someone being involved in an urgent situation and commented that the appellant could have arranged alternative transport, be it by taxi or with assistance from his girlfriend. The fact that the appellant had driven deliberately in contravention of the disqualification order in her view made it necessary to impose a penalty which deterred not only the appellant but other persons from similar offending. She pointed out that but for his guilty plea, she would have imposed a sentence of six weeks imprisonment. She then imposed the penalty to which I have earlier referred, that is a sentence of imprisonment for a period of 28 days, and she declined to suspend that sentence. Appellant’s Submissions

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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