AMOS v POLICE

[2010] SASC 232

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

AMOS v POLICE

[2010] SASC 232

Judgment of The Honourable Justice Vanstone (ex tempore)

23 July 2010

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING UNDER INFLUENCE OF INTOXICATING LIQUOR OR A DRUG - SENTENCE AND PENALTY

Appeal against sentence - appellant convicted for traffic offences, including driving under the influence of alcohol - magistrate imposed licence disqualification until further order with a condition that the licence was not to be restored until the appellant passed a Drug and Alcohol Addicts Treatment Board medical test - power available to make such an order.

Held:  appeal allowed - no power to impose disqualification order of this nature - licence disqualification order set aside and period of six years disqualification imposed.

Road Traffic Act 1961 s 47, s 47(3), s 47(4), s 47A(3), s 47B, s 47B(3), s 47B(4), s 47J, s 168(1)(c), referred to.

AMOS v POLICE
[2010] SASC 232

Magistrates Appeal (ex tempore)

1. VANSTONE J: On 27 June 2007 the appellant committed traffic offences including a prescribed concentration of alcohol offence against s 47B. On 11 September 2007 the appellant committed offences, traffic offences, including an offence against s 47 of the Road Traffic Act;  namely, driving under the influence of alcohol.  Both sets of offences occurred at Port Augusta and the driving under the influence and prescribed concentration of alcohol offences both involved levels of alcohol in excess of 0.2 grams per cent.

2. Upon conviction for both offences the court was obliged to order that the appellant be disqualified from holding or obtaining a driver's licence for such period as was thought fit, being not less than three years: s 47B(3) and s 47(3). That was because the offences before the court were subsequent offences for the purposes of s 47B(4) and s 47(4), as within the prescribed period immediately preceding the date of each offence the appellant had committed a drink driving offence. In this case the prescribed period was five years: s 47A(3). However, instead of fixing a period of licence disqualification, the magistrate purported to disqualify the appellant's licence until further order and stipulated that the licence was not to be restored until the appellant passed a s 47J Drug and Alcohol Addicts Treatment Board medical test, in not less than three years time.

3. In purporting to utilise the powers provided in s 47J of the Act, the magistrate was in error. That section applies only to persons convicted of prescribed offences within the metropolitan area of Adelaide.

4. There is a general power in the Act to impose a disqualification until further order: s 168(1)(c). However, the court is not empowered to impose a condition of the type stipulated here upon the regaining of the licence.

5. It is agreed by counsel before me that the magistrate erred in proceeding as she did and so that aspect of her disposition of the matters must be set aside and reconsidered.

6. I have heard brief submissions as to the appropriate disqualification order.  The appellant has an extremely poor record of driving, particularly drink driving.  Furthermore, the error in the magistrate’s order came to light because the appellant came before the Magistrates Court charged with fresh offences of the same ilk committed on 27 February 2010.

7. I make the following orders:

   1.     extend the time within which to appeal to 4 May 2010;

   2.     allow the appeal;

   3.set aside the order of licence disqualification made on 3 March 2008 and impose in its place an order that the appellant be disqualified from holding or obtaining a driver's licence for a period of six years;

   4.     otherwise affirm the magistrate's orders.