ALLEN v POLICE No. SCGRG-97-1698 Judgment No. S6528

[1998] SASC 6528

ALLEN v POLICE

Magistrates Appeal
Olsson J

The appellant appeals against orders made against him, on 26 November 1997, by a stipendiary magistrate.  He argues that the quantum of a fine imposed on him and a period of licence disqualification ordered were both manifestly excessive in the circumstances.

The orders sought to be impugned need to be viewed in context.

The appellant, a man aged 30 years, appeared before the learned magistrate to answer multiple charges.  In the event two counts were withdrawn when he pleaded guilty to the following four offences, all committed at Waterloo Corner Road, Paralowie on 30 May 1997 -

.        driving under the influence of intoxicating liquor;
.        driving an unregistered vehicle;
.        driving an uninsured vehicle;  and
.        driving whilst he was not the holder of an appropriate licence.

This appeal is limited to the penalties imposed in respect of the first offence, in respect of which the appellant was fined $1,200 and disqualified for two years and six months.  The learned magistrate did not express any detailed reasons for the orders which he made.

At about 10.50 pm on the night in question police officers observed the appellant, who was driving a panel van, turn from Bagsters Road onto Waterloo Corner Road to travel in a westerly direction along the latter.  There was light to medium density traffic at the time.  Waterloo Corner Road is a main arterial road with two lanes in each direction.  The police noted that the front near side tyre was flat, the van was leaning to its left and the vehicle was emitting a considerable noise.  Embarrassment was, the police brief asserted, being caused to other drivers by the appellant’s mode of driving.  Presumably this was because he was travelling at a slow speed and other vehicles were required to pull out to pass around his van.

On stopping and speaking to the appellant the police officers noted that his speech was slurred, he was swaying and unsteady on his feet and his movements were unco-ordinated.  He smelt strongly of liquor.  A subsequent breath analysis indicated that he had a blood alcohol concentration of 0.238%.

The flat tyre on the van was seen to have been shredded.

The appellant told the police officers that he had been too busy at work to re-register his vehicle.  He said that he had lost his licence.

It was conceded that the appellant had a prior conviction in 1990 for driving under the influence.  This had attracted a fine of $1,000 and a licence disqualification for 13 months.

Counsel for the appellant submitted the following factual material to the learned magistrate:-

.The appellant had been at the Elizabeth Downs Hotel.  It was unusual for him to stay at the hotel for any length of time.  He was a hard working man employed as a carpenter.  He occasionally stopped at the Elizabeth Downs Hotel on the way home from work, but would only drink one or two schooners of beer before leaving for home.  However, on this occasion, he had, unfortunately, met a man at the hotel with whom he had previously worked in Mount Gambier. They began talking about old times, buying rounds of drinks, and the appellant stayed at the hotel for some four hours talking to this gentleman and drinking more than he would normally drink.

.The appellant then proceeded to drive to his home, which was some 8 kilometres distant from the hotel.

.On the way home, he experienced a flat tyre.  He put on his hazard lights while on Waterloo Corner Road, and was just crawling along waiting until he could get to a quiet side street to turn down, so he could park and change his tyre.  Consequently, he was driving at a very slow rate of speed with his hazard lights flashing.  The prospects of there being any collision were greatly reduced.

.The vehicle was unregistered because the appellant had been working long hours and had not had time to register the vehicle.

.The appellant had lost his licence when fishing when his wallet fell over the side of the boat and could not be retrieved.  His licence had been in his wallet.  In the circumstances, he did not know that it had expired.  He did not receive a renewal notice from the Department of Motor Vehicles reminding him of that fact.

.The appellant was aged 29 years, having been born in Western Australia on 6 September 1967.  He had been schooled at Paralowie and left school when he was about 16.  He went straight from school to become an apprentice carpenter, and has worked in that trade ever since.

.The appellant was employed as a sub-contractor to the South Australian Housing Trust, doing maintenance work on houses.  This involves driving from house to house, carrying his tools with him.  Consequently, for the period of any licence disqualification, he would be unable to work his current contract.

.At the time of the hearing before the learned magistrate the appellant was currently absent from work, having injured his knee at work.  He was then on WorkCover benefits and expected to be able to return to work in about January 1998.  However, he would be unable to return to work for any period in respect of which his licence was disqualified.  Disqualification would therefore bear on him in a particularly hard fashion.

Against the foregoing background Mr Dixon, of counsel for the appellant, strongly contended that there was simply no warrant for imposing what was the maximum possible fine on the appellant, as the learned magistrate had in fact done.

In this regard Mr Dixon stressed these features:-

..his client was a hard working man, whose only antecedent offence was that in 1990.

..whilst the blood alcohol concentration was high and there was the police evidence of lack of co-ordination, the fact remained that there was no suggestion of bad driving or driving at speed.  The only embarrassment that had been caused to other drivers was that which would have been caused by any sober driver caught in the same predicament.

..despite his level of intoxication the appellant had acted in an entirely appropriate manner when his tyre unexpectedly lost pressure.  He illuminated his hazard lights and proceeded along the main road on his correct side at a slow speed, looking for a side road into which he could turn to change the flat tyre.

..he at all times co-operated with the police.

He submitted that this was, by no means, the worst possible case of its type.  Whilst, due to the high blood alcohol reading and the appellant’s lack of physical co-ordination, the offence was certainly above the bottom of the spectrum of its generic type, the learned magistrate patently fell into error by classifying it in the worst case category, as he obviously did.

Bereft as I am of any remarks as to penalty to explain the reasoning processes adopted by the learned magistrate, I am compelled to the conclusion that Mr Dixon is correct.  The offence was undoubtedly serious, but, by no stretch of the imagination was it the worst offence of its type.  The maximum penalty is to be reserved for the latter type of situation (R v Shannon (1991) 57 SASR 14). In the instant case due regard had to be paid not merely to the degree of intoxication, but also the manner of driving, the relevant general circumstances, the relevant mitigating factors as outlined above, and the need to give due allowance for the appellant’s timely plea of guilty and co-operation with the police. No such allowance was given. Whilst the degree of intoxication was clearly relevant, so also was the actual manner of driving, which was quite circumspect, given the occurrence of the flat tyre. (Taylor v Samuels (1977) 16 SASR 266. It is inappropriate to make full allowance for aggravating features, but fail to recognise favourable features.

Indeed, Taylor v Samuels provides an interesting and relevant illustration for present purposes.  There the blood alcohol concentration was similar to that in the present case.  However, the manner of driving was reckless and dangerous in the extreme.  Given that the appellant in that case was a young man who had no prior convictions, the Full Court reduced the period of suspension from 2 ½ years to 18 months.

The point was firmly made in that case that disqualification is no less to be approached as a punishment and deterrent, in the fixation of its period, as the fine element of any penalty imposed.  The personal mitigating factors are no less applicable to both aspects of the ultimate penalty.  (See per King J (as he then was) at p284.1.)  Moreover, there is great logic in the comment of Hogarth J that, absent a very different antecedent history, a difference between disqualification of eighteen months and two and a half years would have little if any effect either on the appellant, or on others who might be tempted to act as he did.

In so saying, I by no means ignore the appellant’s 1990 conviction.  However, the statute itself draws a very clear distinction between prior offences committed within the preceding five years and those committed at an earlier point in time.

Moreover, the very serious practical impact of a substantial period of disqualification upon the ability of this appellant to engage in his normal employment most be accorded due significance.

Finally, it seems apparent to me that, all other considerations aside, the learned magistrate completely failed to give effect to the mandatory provisions of section 13 of the Criminal Law (Sentencing) Act. The evidence before the learned magistrate indicated, in the clearest terms, that the Workcover benefits payable to the appellant were likely to terminate a few weeks after the hearing, at which point it was almost inevitable that his employment would necessarily cease. To impose fines totalling $1,650 (of which $1,200 related to the section 47 offence) plus fees, flew directly in the face of the statutory mandate, even allowing for the extended time in which to pay.

In my opinion the learned magistrate plainly erred in sentencing principle.  It, therefore, falls to me to exercise the sentencing discretion afresh.

Bearing in mind all relevant factors and the implications of section 13 of the Criminal Law (Sentencing) Act, I consider a fine of $800 appropriate. In my view the imposition of a period of two and a half years’ disqualification was draconian in the extreme and reflected an erroneous assessment of the relevant facts. I am of opinion that, in all of the circumstances outlined above, a period of eighteen months is appropriate.

Accordingly, the appeal will be allowed.  The relevant fine and period of disqualification will be set aside.  In lieu there will be substituted the fine and period of disqualification above indicated, such period to run from 26 November, 1997.