Brett Marshall Byrne v SA Police No. 4166 Judgment No. SCGRG 93/1493 Number of Pages 4 Traffic Offences

[1993] SASC 4166

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Traffic offences - driving under the influence and while disqualified - Appeal from sentence imposed in Magistrates Court on 29 year old shearer on second offence of driving under the influence within twenty months - sentenced to two months' imprisonment and seven years licence disqualification - separate appeal against two months' imprisonment imposed for driving on the same occasion while his licence was disqualified - held that in the circumstances the appeal should be allowed so as to vary the order that the two terms of imprisonment be served cumulatively to an Order that they be served concurrently, and reducing the length of the licence suspension to five years. Road Traffic Act 1961s.47 and Motor Vehicles Act 1959s.91. Coombe v Douris (1987) 47 SASR 324 and Eldridge v Bates (1989) 51 SASR 532, considered.

HRNG ADELAIDE, 6 September 1993 #DATE 6:9:1993
Counsel for appellant:     Mr W.P. Boucaut
Solicitors for appellant:    Mason Westover Rowe
   Homburg
Counsel for respondent:     Ms M. Clements
Solicitors for respondent: Crown Solicitor (SA)

ORDER
Appeal allowed in part.

JUDGE1 PERRY J The appellant appeals against the penalty imposed in the Murray Bridge Magistrates Court following his plea of guilty to charges that he drove under the influence of intoxicating liquor, and that he drove while disqualified from holding or obtaining a driving licence. Charges that he drove with an excess blood alcohol concentration, and drove without due care were withdrawn. 2. As to the offence of driving under the influence the learned magistrate sentenced the appellant to imprisonment for four months, and disqualified him from holding or obtaining a driver's licence for a period of seven years. On the conviction for driving whilst under disqualification, the appellant was sentenced to two month's imprisonment cumulative upon the expiration of the sentence imposed on the other count. 3. In his notice of appeal the appellant complains that the penalties imposed on both counts were manifestly excessive, and further, that the learned magistrate erred in failing to order that the terms of imprisonment be served concurrently. 4. The circumstances of the offences are set out in the affidavit of the police prosecutor. It appears that he informed the court that the offences occurred about four kilometres west of Tailem Bend on Princes Highway at about 8 a.m. on the morning of 6 December 1992. The appellant was driving a Sigma sedan which collided with the rear of a Toyota station wagon. The driver of the station wagon asserted that he was travelling at about 110 km per hour at the time in question, east on Princes Highway. He had previously seen the Sigma sedan as it approached, swerving off the road, and on to the dirt. 5. Fortunately neither the driver nor the three passengers in the Toyota, nor the two passengers asleep in the Sigma, received any injuries as a result of the collision between the two vehicles. The total damage to the vehicles was of the order of $4000. Police attended the scene. 6. The appellant was asked to leave the car. He did so with difficulty, and was unsteady on his feet, swaying from side to side. He had a strong smell of liquor on his breath. His speech was slurred, his eyes bloodshot and watery, and his movements slow and deliberate. A subsequent breath analysis produced a reading of .310% blood alcohol. When questioned the defendant said that he said nothing to drink since 11.30 p.m. the previous evening, and that he had only three cans of beer. Given the blood alcohol reading this must have been patently untrue. 7. He said that the accident occurred when he attempted to overtake the other vehicle and misjudged the manoeuvre. He did not know what his speed was at the time. He volunteered, when asked for his licence, that it had been disqualified for an earlier offence. He said that he drove because he thought the owner of the car was too drunk to drive. I find it surprising that the appellant and the owner of the car were so seriously affected by alcohol so early in the morning. 8. As it transpires, the appellant had previously been convicted in the same court, that is Murray Bridge Magistrates Court, on 10 April 1991 when he was fined $900 and disqualified from holding or obtaining a driver's licence for two years on a charge of driving under the influence. 9. I received in evidence on the hearing of the appeal an affidavit by the solicitor who appeared as counsel for the appellant in the court below. He informed the learned magistrate that the appellant was 29 years of age and single, and followed the occupation of a shearer. He tendered certain references from past employers which I have had the benefit of reading with the papers which have been transmitted to this Court. He explained that, on his instructions, the appellant had travelled the night before to Adelaide for what he described as a night on the town. It appears that he consumed alcohol at a nightclub. Wanting to get back to Meningie to attend another function the next morning, he and the owner of the car set off from Adelaide. The friend who owned the car drove as far as the Eagle On The Hill Hotel and, according to what was put to the learned magistrate, the owner then asked the appellant to take over the driving. It was after he did so that the accident occurred which resulted in the laying of the charges now in question. 10. It was put to the learned magistrate that the appellant's judgment in relation to his decision to drive was affected by the liquor which he had consumed, and the appellant's counsel further emphasised the appellant's good work record. 11. The affidavit of the appellant's solicitor annexes a table prepared from reports emanating from the Office of Crime Statistics relating to driving offences and the penalties imposed for offences involving varying degrees of blood alcohol level concentration. 12. In my opinion, the utility of such a table is very limited and I note that Mr Boucaut, of counsel before me, did not attempt to rely on it, although he made the submission that the period of seven years licence disqualification was unduly severe. Mr Boucaut also emphasised the inconvenience which the appellant will suffer by reason of the deprivation of his licence for so long a period, and the hardship which this will give rise to with respect to his occupation of a shearer. 13. Mr Boucaut said everything which could be said in favour of the appeal, but in my opinion both of the sentences of imprisonment were of a length which was within a proper exercise of the sentencing discretion. The appellant had re-offended by committing a second drink-driving offence within 20 months of the first. The blood alcohol level was high. The observations made of the appellant after he was apprehended suggests that he was considerably affected by the liquor which he had drunk. 14. The suggestion that his judgment with respect to making the decision to drive while disqualified was affected by the liquor he had consumed was not a mitigating circumstance. It is a very commonly occurring situation in these cases and cannot be regarded as a matter which could properly lead to a lower sentence than otherwise would be appropriate. 15. It has been said in Coombe v Douris (1987) 47 SASR 324 by His Honour the Chief Justice King CJ in remarks which have been repeated again and again since but which, nonetheless, still bear repetition (325) that the ordinary punishment for driving under disqualification must be imprisonment. It is of the utmost importance that magistrates should appreciate their duty, painful though it might be on occasions, to impose sentences of imprisonment for this offence in order to maintain the effectiveness of disqualification orders. I would refer also to Eldridge v Bates (1989) 51 SASR p.532. 16. Notwithstanding those comments, it must be borne in mind that the appellant is only 29 years of age and it does not appear that he has had any previous convictions other than the offence to which I have referred. 17. Having regard to all the circumstances, I would not interfere with the two sentences of imprisonment, but I feel that to make them cumulative has produced a total sentence which is excessive. The two offences arose out of the same episode of driving. I think that it would have been proper in all the circumstances to make the two sentences of imprisonment concurrent. 18. I have carefully considered the arguments advanced with respect to the length of the licence disqualification. Ms Clements for the respondent quite properly conceded that it was a severe disqualification, although she argued that it was not manifestly excessive. In all the circumstances, I feel that it was a penalty which was to a degree disproportionate to the circumstances of the offences, serious though they were. 19. Having regard to all of the circumstances, I think it proper that the licence disqualification be reduced to a period of five years. 20. Before parting with the matter, I indicate that it is important that the appellant learn that the offence of driving while under the influence of alcohol will not be tolerated. It is clear that he has a problem with his drinking habit. It is to be hoped that the penalty which he will suffer after the 6 hearing of this appeal will still bring home to him that he must mend his ways with respect to drinking and driving. If he does not do so, he can only expect that there will be an escalation of the penalties which will be imposed upon him. 21. The appeal will be allowed for the purpose of ordering that the two terms of imprisonment be served concurrently, and that the length of the licence disqualification be reduced from seven years to five years. The sentences imposed and orders made by the learned magistrate will otherwise stand. 22. I order that the respondent pay the appellant's costs which I fix at $150.