BIDLAKE v Police

[2010] SASC 34

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

BIDLAKE v POLICE

[2010] SASC 34

Judgment of The Honourable Justice White (ex tempore)

10 February 2010

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - OTHER OFFENCES

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION

Appeal against length of licence disqualification imposed for offence of driving with the prescribed concentration of blood alcohol contrary to s 47B(1) of the Road Traffic Act 1961 (SA) - appellant's blood alcohol concentration was very high - Magistrate treated the offence as the appellant's first offence of its kind - length of licence disqualification not manifestly excessive in all the circumstances.

Held:  appeal dismissed.

Road Traffic Act 1961 (SA) s 47B, 47IAA, referred to.

BIDLAKE v POLICE
[2010] SASC 34

Magistrates Appeal (ex tempore)

1. WHITE J:             The appellant appeals against the sentence imposed upon him for the offence of driving with the prescribed concentration of alcohol contrary to s 47B(1) of the Road Traffic Act 1961 (SA) (RTA).

2. His offence was committed at about 10.15 am on 5 September 2009 on the Salisbury Highway at Mawson Lakes. The appellant was stopped at a breath testing station. The breath analysis revealed that the concentration of alcohol in his blood was 0.191 g in 100 ml of blood.

3. Acting under s 47IAA of the RTA the police imposed an immediate licence disqualification on the appellant for a period of 12 months. He had served just over three months of that period when he was sentenced by the Magistrate on 8 December 2009.

4. The Magistrate imposed a fine of $850 and made an order disqualifying the appellant from holding or obtaining a driver’s licence for a period of 15 months commencing on 8 December 2009. That means that in the aggregate the appellant will serve a licence disqualification of 18 months.

5. The appellant represented himself before the Magistrate and also on the appeal to this Court. He argues that the length of the disqualification imposed upon him is too high. He does not contend that the fine imposed by the Magistrate was too large.

6. On the evening of 4 September 2009 the applicant had consumed some alcohol. At 6 o’clock on 5 September he drove his son from Parafield Gardens to his place of work at Regency Park and then returned to his home. At about 7.30 am that same morning he drove to a friend’s house at Ottoway where, with the friend, he consumed some more alcohol. He was on his way home from his friend’s house at about 10.15 am when he was stopped by Police at the breath testing station.

7. The appellant argues that the 15 month disqualification was too high because it was cumulative upon the three month period of the licence disqualification imposed by the police which he had already served at the time that he was sentenced and because of his personal circumstances. The appellant acknowledged that in the past he has had a problem with alcohol. However, he submitted that as at 8 December 2009, he had abstained wholly from alcohol for a period of three months; his last drink being on 8 September 2009. He has continued to abstain from drinking alcohol to the present time.

8. He submitted that his use of his driver’s licence is important. Although on a disability support pension he does do some part-time work as a painter for which he needs to carry equipment. In addition he needs, from time to time, to drive a car in order to attend to his own social and shopping needs and to some extent, those of his family. The loss of the licence also means that he cannot provide assistance to a friend who suffers from a medical condition and to that friend’s mother.

9. The appellant also explained to me that he had a number of difficulties in the past in his personal life and that he considers that he is now getting his life into some kind of order and that his driver’s licence is important to him in that regard.

10. As I explained to the appellant during the course of the hearing, the circumstances in which this Court on appeal can interfere with a Magistrate’s decision about licence disqualification are limited. The Court cannot reduce the sentence imposed by the Magistrate unless it is satisfied that the Magistrate has made an error. It is not enough for this Court to consider that if it had been in the position of the Magistrate it may have imposed some lesser sentence.

11. Accordingly, a person in the appellant’s position must satisfy the Court that the Magistrate acted on some wrong sentencing principle, or took into account an irrelevant matter, or failed to have regard to a relevant matter, or even though no precise error of those kinds can be identified, that the sentence can be said to be so unreasonable that it cannot be regarded as a proper exercise of the sentencing discretion.

12. The appellant acknowledged that many of the matters which I have mentioned about his personal circumstances had not been put to the Magistrate. He attributes that to the fact that he was unrepresented before the Magistrate and it is understandable that that was so.

13. Although these were matters which had not been put to the Magistrate I indicated to the parties that, given that the appellant had been unrepresented, I would take them into account in considering whether or not the Magistrate had made an error.

14. The appellant’s blood alcohol reading meant that his offence was a Category 3 offence for the purposes of s 47B of the RTA. He had been convicted in 1990 of the offence of driving under the influence. However, because that offence was committed so long ago the appellant was to be sentenced as though his present offence was a first offence for the purposes of s 47B.

15. Ms Jarrett, counsel for the respondent, pointed out, quite properly and fairly, that the Magistrate had mistakenly thought that the 1990 offence was an offence of dangerous driving rather than a drink-driving offence. However, if anything, that was a mistake in favour of the appellant as it meant that the Magistrate did not appreciate that the appellant had a previous drink driving offence on his record.  Further, and in any event, the Magistrate said expressly that the 1990 offence “does not figure in my assessment of penalty”. Accordingly, I do not consider this mistake to have been material.

16. Because the appellant was to be sentenced on the basis that his offence was a first offence, the Magistrate had to impose a fine of not less than $700 and not more than $1,200 and, subject to one matter which for completeness I will mention shortly, he had to order that the appellant be disqualified from holding or obtaining a driver’s licence for a period of at least 12 months.

17. It can be seen, therefore, that the period of disqualification imposed by the Magistrate was three months more than the minimum period which he was required by law to impose and I note again that the total period of disqualification which the appellant will serve will be 18 months.

18. There was one circumstance in which the Magistrate could have imposed a licence disqualification of less than 12 months. If he had been satisfied by evidence given on oath by the appellant that the offence was trifling he could have imposed a disqualification of less than 12 months, but even in that circumstance he would still have had to impose a licence disqualification of at least one month.

19. I do not consider that there is any basis at all upon which the appellant’s offence can be said to have been trifling. The very high alcohol reading by itself made such a conclusion difficult, but further, the extent of his driving, that is from Ottoway to Mawson Lakes, is also a relevant consideration. It is not as though the appellant had driven for only a very minor distance.

20. When sentencing the appellant, the Magistrate observed that the reading of 0.191 was very high and that, with such a reading, the appellant presented a danger both to himself and to other road users. The Magistrate referred expressly to the fact that the appellant had already served three months of a licence disqualification arising from the offence. He said, however, that he thought it appropriate that the appellant serve a significant disqualification in keeping with his high reading.

21. The Magistrate was correct, in my opinion, to refer to the dangers which the appellant’s blood alcohol content presented both to himself and to other road users. The impairment to the faculties which high concentrations of alcohol can cause is well-known. The role which the consumption of alcohol plays in the causation of road accidents and collisions is also well-known. Sadly, the courts commonly see the tragic results which occur when people drive with blood alcohol contents of these levels.

22. The significant licence disqualifications which the Parliament requires the courts to impose are intended, amongst other things, to bring home to drivers the seriousness of driving when they have the prescribed concentration of alcohol in their blood and to deter them from doing so.

23. I note that the police officer making the assessment of the appellant’s blood alcohol content considered that he was moderately affected by alcohol. That suggests that his faculties were affected, at least to some degree, and that would be consistent with the high reading which he returned. I note again that the appellant was tested at about 10.15 am

24. It is to the appellant’s credit that he pleaded guilty to the offence and he appears to have done so at the very first opportunity. The Magistrate had a discretion as to the length of the disqualification he would impose. He was not obliged, as Ms Jarrett has pointed out, to impose only the minimum required by s 47B of the RTA. It was appropriate for him to impose a disqualification which reflected the seriousness of the appellant’s offence as reflected in his high reading and the extent to which he had driven.

25. I have considered all of the matters which the appellant has put to me today. I understand and do not underestimate the difficulties which the licence disqualification will mean for him. Difficulties of those kinds are commonly experienced with licence disqualifications. It is the experience of those difficulties which is likely to produce the deterrent effect of a licence disqualification, both for the present appellant and for others. That is to say, the sentence imposed by the Magistrate should bring home to the present appellant and to anyone else who might be minded to drive on the road with the prescribed concentration of alcohol that significant licence disqualifications are likely to be imposed.

26. As I say, I appreciate the extent of the difficulties which the licence disqualification will cause the appellant. However, even when I have regard to those matters, I do not consider that it can be said that the Magistrate erred in his sentencing decision in any of the ways to which I referred earlier. That being so, it is not open for this Court to interfere with the Magistrate’s sentence and for these reasons I dismiss the appeal.