BLAKE v Police - [2004] SASC 433

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BLAKE v POLICE
Judgment of The Honourable Justice Gray
21 December 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
Appeal against penalty imposed by magistrate - appellant convicted of drink driving related offences - license disqualifications totalling nine years and six months were imposed - appeal on grounds that penalty imposed manifestly excessive and magistrate failed to have proper regard to the principle of totality - consideration of circumstances of offending - consideration of appellant's personal and criminal antecedents - significant history of drink driving related offending - appellant not a candidate for leniency - no error of discretion by magistrate - penalty imposed within discretion - appeal dismissed.
Road Traffic Act 1961 (SA) ss 48 - 51, referred to.
Police v Gunn (2002) 83 SASR 566; The Queen v Rossi (1988) 142 LSJS 451; Jasinski v Police [2004] SASC 183; Dinsdale v The Queen (2000) 202 CLR 321, considered.

BLAKE v POLICE
[2004] SASC 433
Magistrates Appeal
GRAY J:
Introduction

This is an appeal against a sentence imposed by a magistrate.
An extension of time was sought in which to appeal. The ground identified was that the appellant had not been advised of his rights of appeal or of his prospects on appeal. It was said that following a change of solicitors, a review of the file and the taking of advice, the appellant wished to exercise his rights of appeal. The Crown did not oppose an order extending time. It is appropriate to extend time.
The offending the subject of the appeal occurred between October 2003 and January 2004. The appellant was before the court with respect to three drink driving offences. Licence disqualifications totalling nine years and six months were imposed. Other charges included an assault on a police officer led the magistrate to impose a suspended term of imprisonment. No complaint has been made about that sentence.
On appeal the complaint related to the licence disqualifications and in particular their cumulative effect. It was submitted that the magistrate did not have regard to the principle of totality and did not have proper regard to his discretionary powers to order concurrency. In the circumstances the disqualifications were said to be manifestly excessive.
The details of the charges and the penalties imposed by the magistrate relevant to this appeal can be summarised as follows:
-on 9 October 2003 the appellant drove with more than the prescribed concentration of alcohol present in his blood. A reading of .088 was recorded. At the same time he drove in contravention of the licence conditions of his provisional driver’s licence. A fine of $1200 was imposed and his license was disqualified for two years commencing from the date of sentencing;
-on 16 October the appellant drove a motor vehicle while making unnecessary noise and driving whilst so under the influence of intoxicating liquor as to be incapable of exercising effective control of his vehicle. The penalty imposed included a licence disqualification for 42 months. This disqualification was ordered to commence upon the expiration of the earlier disqualification of two years;
-on 29 January 2004 the appellant drove with an excess blood alcohol reading. A reading of 0.167 was recorded. At the same time he drove in contravention of the conditions of his provisional drivers licence. A fine of $1600 was imposed and his licence was disqualified for a period of 48 months. This disqualification was ordered to commence upon the expiration of the earlier disqualification of 42 months.
In the result, three cumulative licence disqualifications were imposed leading to the appellant being disqualified from driving for a total period of nine years and six months.
Antecedents
The appellant has a history of driving offences including offences involving drink driving extending for more than a decade. The more relevant aspects of that history may be summarised as follows:
-On 21 May 1994 the appellant declined a breath analysis test and was disqualified for a period of 13 months.
-On 22 June 1994 the appellant drove with an excess blood alcohol reading and was disqualified for a period of six months.
-On 6 May 2000 the appellant drove under the influence of alcohol and was disqualified for a period of 12 months.
-On 8 July 2000 the appellant drove with excess alcohol in his blood and was disqualified for a period of 12 months.
-On 24 November 2000 the appellant drove with an excess of alcohol in his blood and was disqualified for a period of six months.
-On 26 November 2000 the appellant drove with an excess of alcohol in his blood and was disqualified for a period of 12 months.
A number of the disqualifications ordered in the year 2000 took effect from the same date leading to considerable concurrency of those periods of disqualifications. The appellant’s drink driving history is appalling. The appellant has apparently taken no steps to address his problem with alcohol.
As earlier discussed the offending the subject of this appeal occurred on 9 and 16 October 2003 and 29 January 2004. When considering the offences it is important to record that the appellant was aware at the time of the offence of 16 October 2003 that he had been driving with excess alcohol a week earlier. On 29 January 2004 he was aware of his earlier offending on 9 and 16 October 2003.
The appellant is aged 27 years. He has three children with whom he has limited contact. He lives with his mother. In March 2003 he sustained severe personal injury. Medical reports before the magistrate indicated that he had been subject to an assault that led to his admission to the Royal Adelaide Hospital with a serious head injury. This injury has left a degree of permanent brain damage. It is said that as a result he lost his employment.
Counsel for the appellant acknowledged that the appellant would be eligible to participate in the interlock device program once he had served half the licence disqualification period. [1]
[1] Road Traffic Act 1961 (SA) sections 48 – 51. See also Police v Gunn (2002) 83 SASR 566
Consideration of the Issues on Appeal
The magistrate had regard to the appellant’s personal and criminal antecedent. A serious view was taken of the appellant’s drink driving offending. The magistrate, in the course of his ex tempore remarks, did not explicitly address the principle of totality[2] or his discretion to order that the proposed disqualifications be concurrent or partly concurrent.[3] It was accepted by the Crown that totality was a relevant matter to be considered and that the magistrate had a discretion to order concurrency or partial concurrency.
[2] The Queen v Rossi (1988) 142 LSJS 451
[3] Jasinski v Police [2004] SASC 183
Counsel for the appellant submitted that the magistrate did not have proper regard to the issue of totality. It was said that to impose a licence disqualification totalling nine years and six months was harsh and crushing.
As counsel for the appellant pointed out the appellant was not to be punished for his earlier offending. However, his earlier like offending was relevant. It suggested and demonstrated that the appellant had a longstanding problem with alcohol and that he needed treatment to control his alcohol consumption. As earlier observed to date he has done nothing to address this problem. The appellant’s antecedents suggest that he was not a candidate for leniency. He did not present with good prospects for rehabilitation.
It has not been demonstrated that the magistrate failed to have regard or properly have regard to the principles of totality. The offending before the magistrate was very serious. It might be described as contumacious. The offending the subject of this appeal took place against the background of prior drink driving offending over almost a decade.
Having regard to these factors it cannot be said that the magistrate erred in his discretion in the imposing of the licence disqualifications or in ordering that the disqualifications take effect cumulatively.[4] The appellant’s overall record including this offending would suggest that he is not fit to be licensed to drive. The link between road carnage and drink driving is well established. In the circumstances the penalties imposed by the magistrate were within his discretion.
[4] Dinsdale v The Queen (2000) 202 CLR 321
This appeal is dismissed.