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)

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).
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.
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.
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.
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.
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.
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…

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 BIDLAKE v Police

Details

AGLC: BIDLAKE v Police [2010] SASC 34
Case: [2010] SASC 34
Decision Date: 10 February 2010

CaseChat Overview and Summary

The appeal in this case arose from a conviction for driving with a blood alcohol concentration exceeding the prescribed limit, an offence under the Road Traffic Act 1961 (SA). The appellant, who was found to have a very high blood alcohol concentration, was initially treated as a first-time offender by the Magistrate. The primary issue before the Supreme Court was whether the length of the licence disqualification imposed by the Magistrate was manifestly excessive, given the circumstances of the offence and the appellant's driving history. The appellant contested the severity of the penalty, arguing that it was disproportionate to the nature of the offence and his background.

The court examined the principles guiding its discretion in interfering with the Magistrates' Court's decision. It considered the gravity of the offence, the appellant's blood alcohol concentration, and whether the penalty imposed was within the bounds of what could be considered reasonable. The court also took into account that the Magistrate had treated the offence as the appellant's first of its kind, which could influence the severity of the penalty. The Supreme Court found that, considering all the circumstances, the length of the licence disqualification was not manifestly excessive.

In summary, the Supreme Court upheld the decision of the Magistrate, concluding that the penalty was appropriate given the high blood alcohol concentration and the circumstances surrounding the offence. The appeal was dismissed, and the original sentence remained in place. The court's decision emphasised the importance of considering all relevant factors in determining an appropriate sentence for such offences, including the offender's driving history and the specific details of the offence.

Orders