Bawden v Police - [2006] SASC 260

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
BAWDEN v POLICE
[2006] SASC 260
Judgment of The Honourable Chief Justice Doyle (ex tempore)
22 August 2006
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
Appeal against sentence - the appellant pleaded guilty in the Magistrates Court to one count of being so much under the influence of intoxicating liquor as to be incapable of exercising effective control over a motor vehicle contrary to s 47 of the Road Traffic Act 1961 (SA) and one count of behaving in a disorderly manner contrary to s 7(1)(a) of the Summary Offences Act 1953 (SA) - the Magistrate imposed a fine of $700 for the first offence and disqualified the appellant from holding or obtaining a driver's licence - whether the Magistrate erred by disqualifying Mr Bawden from holding or obtaining a driver's license - consideration of whether the offence could be characterised as trifling - it cannot be said that the offence is trifling - the circumstances of the offending involved the appellant causing his motor vehicle to remain stationary in the middle of a main road at night - consideration of s 47(3) of the Road Traffic Act in view of s 16 and s 39 of the Criminal Law (Sentencing) Act 1988 (SA) - s 47(3) of the Road Traffic Act 1961 (SA) requires the imposition of a mandatory minimum sentence being a period of disqualification for holding or obtaining a driver's licence for 12 months - the legislation does not disclose a basis on which to refrain from imposing a minimum licence disqualification if the offence cannot be characterised as trifling - appeal dismissed.
Road Traffic Act 1961 (SA) s 43, s 47, s 47(3), s 47(3)(b); Criminal Law (Sentencing) Act 1988 (SA) s 16, s 39; Summary Offences Act 1953 (SA) s 7(1)(a), referred to.
Janz v Woolven (1990) 55 SASR 239, applied.

BAWDEN v POLICE
[2006] SASC 260
Magistrates Appeal: Criminal

DOYLE CJ (ex tempore): Mr Bawden pleaded guilty before the Magistrates Court to two charges.
The first charge was that on 24 April 2006 he attempted to put in motion a motor vehicle whilst so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the vehicle contrary to s 47 of the Road Traffic Act 1961 (SA) (the “RTA”). The second charge was a charge of behaving in a disorderly manner contrary to s 7(1)(a) of the Summary Offences Act 1953 (SA).
He came before the Magistrates Court without legal representation.
The Magistrate recorded a conviction on each charge. As to the first charge, the Magistrate imposed a sentence that was the minimum permissible in the circumstances before him, a fine of $700 and an order disqualifying Mr Bawden from holding or obtaining a driver’s licence for 12 months commencing on the date of the offence. As to the second charge, he imposed a fine of $200.
Mr Bawden appeals against the sentence. His complaint appears to be about the order disqualifying him from holding or obtaining a driver’s licence.
The Magistrate was told by the prosecutor that at about 1.25 am a witness saw a car stationary on a road on which he was travelling. The witness spoke to the driver, Mr Bawden. Mr Bawden declined an offer to help him push the car off the road. Mr Bawden tried to start the car but it would not start. Together they then pushed the car to the side of the road. The witness called the police, believing that Mr Bawden was affected by alcohol. The police arrived a few minutes later. Mr Bawden by then was asleep in his car. The police woke him. There was a strong smell of alcohol in the car. When he got out of the car, Mr Bawden was unsteady, according to the police, was swaying and spoke in a slurred manner. The police thought he was affected by alcohol.
They took Mr Bawden to a police station. There he refused to provide a breath sample and began to shout at the police and waved his arms about. That gave rise to the second charge, the charge of behaving in a disorderly manner.
On the face of the material before the Magistrate the charges were made out and I do not understand Mr Bawden to deny that.
The prosecutor’s affidavit states that Mr Bawden said he wished to plead guilty and that the Magistrate warned him of the seriousness of the charges and of the likely consequence if he pleaded guilty. Mr Bawden declined the offer of an adjournment to get legal advice.
The court appearance came about two months after the offences and so Mr Bawden had had time to think about the position.
There is no basis for criticising the procedure followed by the Magistrate.
Mr Bawden must have put forward some of the circumstances that he now relies on. I say this because the Magistrate referred to Mr Bawden’s personal circumstances as being “fairly weighty”, however, the Magistrate has not recorded what they were.
It was not open to the Magistrate to refrain from recording a conviction with a view to substituting a bond or imposing no relevant penalty. The Full Court held in Janz v Woolven (1990) 55 SASR 239 that the power under s 16 or s 39 of the Criminal Law (Sentencing) Act 1988 (SA), to refrain from recording a conviction could not be exercised to avoid imposing the mandatory minimum period of disqualification required by s 47(3) of the RTA. That meant that the Magistrate had no choice in the circumstances but to record a conviction and once the conviction was recorded, subject to one matter, the mandatory minimum period of disqualification for 12 months came into play. In any event, there does not appear to be a basis for exercising the power not to record a conviction even if it were available.
Mr Bawden has provided a written statement. He admits the circumstances of the offence and that he had been drinking. He says that he remembers only parts of what happened. He says that medication he was taking, coupled with the alcohol, causes him to suffer a memory loss. This suggests that he would have realised at the time that he should not have tried to drive. His main point is that, for reasons he outlines in his statement, the loss of the ability to drive causes him real hardship. He has a back complaint and a heart condition for which he takes medication. A short note from his doctor states that he cannot use public transport and Mr Bawden confirmed that before me today and explained why.
There is really nothing to explain the excessive alcohol consumption on the night or the decision to drive home after drinking alcohol. But it was open to the Magistrate, even though he recorded a conviction, to impose a lesser period of disqualification than 12 months if he was satisfied by evidence on oath that the offence was trifling. He had power to do this under s 47(3)(b).
Mr Bawden did not give evidence before the Magistrate. However, if I thought that, in the circumstances before me, it was open to reach a finding in favour of Mr Bawden, I would have invited Mr Bawden to give that evidence before me. However, on the circumstances which Mr Bawden has outlined to me, it seems that there was no basis on the material before the Magistrate, nor is there on the material before me, for holding that the offence is a trifling offence. Mr Bawden’s car was stationary at night on a fairly busy road, even though it might not have been particularly busy at the time. He had created an obvious source of danger. It appears that he was significantly affected by alcohol. In those circumstances it is impossible to say that this was a trifling offence and so there is no basis for the exercise of the power under s 47(3)(b) to reduce the period of the licence disqualification.
It follows that the Magistrate had to impose at least the penalty that he did impose. To impose the absolute minimum, both as to disqualification and fine, was in the circumstances a lenient course to take.
I accept that Mr Bawden and others who rely on him will suffer considerable inconvenience, and more than inconvenience, because he cannot drive. Parliament has made it clear that this offence is to attract a heavy penalty because of its seriousness and because of the danger it often creates and that it attracts a minimum penalty which is a heavy one unless the offence can be described as trifling, which in this case it cannot.
So, for those reasons, I have no choice but to dismiss the appeal.