CHAMBERS v Police - [2008] SASC 160

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CHAMBERS v POLICE
[2008] SASC 160
Judgment of The Honourable Justice David
18 June 2008
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - GENERALLY
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING UNDER INFLUENCE OF INTOXICATING LIQUOR OR A DRUG - GENERALLY
Appellant pleaded guilty to charge of driving under the influence, refusing to submit to a breath analysis and resisting police - in relation to the first count the magistrate imposed 42 days of imprisonment suspended upon the appellant entering into a bond and 17 months licence disqualification - in relation to second count the magistrate imposed a fine and 12 months cumulative licence disqualification - appeal against the conviction for the second count - whether appellant punished twice for the same offence - offending behaviour distinct for each offence and charges are not alternatives - appeal against the severity of sentence for both counts - term of imprisonment manifestly excessive - principle of totality not taken into account regarding the periods of licence disqualification imposed.
Held: appeal against conviction dismissed, appeal against sentence allowed.
Road Traffic Act 1961 (SA) ss 47, 47B, 47E; Criminal Law (Sentencing) Act 1988 (SA) s 11; Summary Offences Act 1953 (SA) s 6, referred to.
Samuels v Young (1978) 19 SASR 406, discussed.
Smith v Jakacic (1991) 15 MVR 479; Police v Cargill [2000] SASC 336; Soroba v Police [2005] SASC 259; Collie v Police [2002] SASC 109, considered.

CHAMBERS v POLICE
[2008] SASC 160
Magistrates Appeal
DAVID J:
Introduction

This is an appeal against both conviction and sentence. The appellant pleaded guilty in the Mount Gambier Magistrates Court to three offences, the particulars of which I set out below from the complaint:
Count 1
On the 1^st day of February 2008 at Mount Gambier in the said State, drove a vehicle, namely a motor vehicle, on a road, namely Jubilee Highway West, whilst he was so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the said vehicle.
Section 47(1)(a) of the Road Traffic Act 1961 (SA).
This count carries a maximum penalty of a fine between $700 and $1,200 or imprisonment for three months, and a minimum period of licence disqualification of not less than twelve months. In relation to this count, the magistrate imposed a sentence of six weeks imprisonment suspended upon the appellant entering into a bond to be of good behaviour for three years in the sum of $500, seventeen months licence disqualification and vehicle impounding costs of $342.
Count 2
On the 1^st day of February 2008 at Mount Gambier in the said State, being a person who was required under s 47E of the Road Traffic Act 1961 to submit to a breath analysis, refused to comply with all reasonable directions of a member of the Police Force in relation…

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.

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Details

Case: [2008] SASC 160
Decision Date: 18 June 2008

CaseChat Overview and Summary

The appellant, Mr Chambers, appealed against his conviction and sentence for driving under the influence, refusing to submit to a breath analysis, and resisting police. The case was heard in the Magistrates' Court of South Australia and subsequently appealed to a higher court. The central issue was whether the appellant was punished twice for the same offence, specifically whether the charges for driving under the influence and refusing to submit to a breath analysis were distinct or alternatives. Additionally, the court reviewed the severity of the sentences imposed, particularly the imprisonment term and the cumulative periods of licence disqualification.

The court held that the charges were distinct and not alternative offences. The conduct related to driving under the influence occurred before the appellant was taken into custody, while the refusal to submit to a breath analysis took place after his arrest. The court concluded that the offending behaviour was distinct for each offence. Regarding the severity of the sentence, the court found that the 42-day imprisonment term was manifestly excessive, and the principle of totality was not properly considered in relation to the periods of licence disqualification. The court also noted that the magistrate had not adequately considered the appropriate penalties for each offence.

The appeal against the conviction was dismissed, but the appeal against the sentence was allowed. The court re-sentenced the appellant to a total fine of $1,800 and a licence disqualification of seventeen months, which included a concurrent period of twelve months for resisting police. The court ordered that the periods of licence disqualification be backdated to commence on 1 February 2008.

Orders

Orders of the court

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Background

Background to the litigation

The appellant was unrepresented before the magistrate.Background Facts In the early morning of 1 February 2008 police were advised by security at a club called Shadows nightclub on Penola Road, Mount Gambier, that a very intoxicated male (the appellant) had just driven north towards Southend, via Millicent in a white Toyota utility. Shortly afterwards the police located a vehicle similar to that described travelling along Jubilee Highway. They saw the vehicle mount the left‑hand kerb and stop with half the vehicle on the median strip and half on the road. They then had a conversation with the appellant, who alighted from the vehicle in a slow and clumsy manner. He was unsteady on his feet, his speech was slow and slurred and he had a strong smell of alcohol about him. The police formed the view that he was driving under the influence and took him to the Mount Gambier Police Station for breath analysis. A little later, on that same morning, having been taken to the police station, he was asked to submit to a breath analysis test. The appellant was argumentative and uncooperative, and was subsequently arrested and escorted to the cell area of the Mount Gambier Police Station before being charged. During the process of charging, the appellant became aggressive and uncooperative with the police and refused to be searched or to remove his shoes. The police attempted to restrain him in order to conduct a search, but he thrashed his body from side to side, violently resisting them. It was necessary for the police to deploy OC spray upon him and he was eventually subdued, handcuffed and placed in the cells. The appellant was 32 years of age at the time, with no previous convictions. Character references were provided outlining the fact that he was a valued member of local sports clubs and speaking to his good character. The magistrate in sentencing the appellant accepted that the offending was out of character. The magistrate also took into account that the appellant’s mother and father supported him, and relied heavily upon him in the operation of their rock lobster business. In sentencing the magistrate remarked:I have to impose a penalty. It seems to me that you place the community in such a grave risk by your intoxication and the distance that you intended to travel on the main highway and country roads that it is necessary that I order a period of imprisonment. The appropriate imprisonment is 2 months. This is a serious offence. I hardly think you could have driven 80 kilometres in that condition. Something serious was bound to happen either to you or to someone else if you had not been stopped. It is a short period of imprisonment, but an important one [for] general deterrence. …As to count two and three you had been arrested and taken back to the police station and in the course of the events you were given ample opportunity to comply with the police requests which the police had every right to insist on, given the circumstances. I have no doubt your intoxication had something to do with it.…In relation to count 3 the resist police, you took the initiative and went back and saw the police and spoke with them. I am told you made a full and frank apology and that it was sincere. You have pleaded guilty at the earliest opportunity.Appeal Against Conviction

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On looking at the matter for the purposes of re-sentencing, the appropriate penalties are:§ for count 1 the appellant be fined $700 and his licence be disqualified for a period of seventeen months, backdated to commence on 1 February 2008, being the date the appellant’s licence was first disqualified by police; and § for count 2 the appellant be fined $700 and his licence be disqualified for a period of twelve months, also backdated to commence on 1 February 2008. There is no appeal against the penalty in relation to count 3. Conclusion The appeal against conviction is dismissed and the appeal against sentence is allowed. The appellant is fined a total of $1,800 with a licence disqualification of seventeen months, which period includes a concurrent period of twelve months.

Ratio Decidendi

Legal Principle Established

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