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 to the requirement.
Section 47E(3) of the Road Traffic Act 1961 (SA).
This count carries a maximum penalty of a fine between $700 and $1,200 and a minimum period of licence disqualification of not less than twelve months. In relation to this count, the magistrate imposed a cumulative period of twelve months licence disqualification and a fine of $700.
Count 3
On the 1^st day of February 2008 at Mount Gambier in the said State, resisted…members of the Police Force in the execution of their duty.
Section 6(2) of the Summary Offences Act 1953 (SA).
This count carries a maximum penalty of a fine of $2,500 or imprisonment for six months. In relation to this count, the magistrate imposed a fine of $400.
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
The appellant argues that no conviction should have been recorded for count 2, despite the fact that he pleaded guilty to the offence. A plea of guilty may only be overturned in limited circumstances. One of those circumstances is where upon the admitted facts there could be, as a matter of law, no conviction.[1]
[1] Collie v Police [2002] SASC 109, [11].
As I understand the argument, it is that the behaviour represented by count 2, is subsumed by the plea of guilty to count 1 and once the plea of guilty to count 1 was entered, the prosecutor should have withdrawn count 2.
The appellant submits the purpose of charging an offender with failing to submit to a breath analysis test, which carries the same penalty as the most serious category offence of driving with excess alcohol in the blood against s 47B of the Road Traffic Act 1961 (SA) (“the Act”), is because he or she, by denying the authorities the evidence needed to make out an offence against s 47B or to support an offence against s 47, could evade a conviction for either of those offences. In other words, once a conviction is secured for an offence against either s 47 or s 47B of the Act, there is no need to utilise s47E of the Act.
In support of this argument, the appellant cited the decision of Debelle J in Smith v Jakacic.[2] In that case, Debelle J was asked to exclude evidence which formed the basis of a charge pursuant to s 47B of the Act because the appellant in that case had already been arrested for a breach of s 47E of the Act. Debelle J concluded that although a person may be charged with the alternative offences so as to widen the prosecutorial discretion, they cannot be convicted of both.
[2] (1991) 15 MVR 479.
In Police v Cargill,[3] Lander J, in obiter, considered that convictions for offences against both s 47B and s 47 of the Act would amount to punishment for the same offence. Although he therefore considered the charges as alternatives, it is clear that a charge under s 47 of the Act is the most serious in nature and penalty.
[3] [2000] SASC 336, [19].
In Samuels v Young,[4] the Full Court, comprised of Hogarth ACJ, Bright and King JJ, was of the view that s 47B of the Act was introduced by parliament in order to “catch” those drivers whose faculties may be unaffected, but who nevertheless have higher than the prescribed blood alcohol readings. The converse is that s 47 of the Act was left by parliament in order to “catch” those drivers whose blood alcohol reading may be lower than that prescribed, but whose faculties are nevertheless affected. An alcohol reading therefore plays a complementary, rather than a proxy role in relation to an offence against s 47.
[4] (1978) 19 SASR 406.
I reject the appellant’s argument. Although there is some common ground as far as penalty is concerned between the two counts, they nevertheless concern two distinct forms of behaviour. Count 1 involves the appellant’s driving whilst under the influence of liquor and being incapable of exercising effective control over his vehicle whereas count 2 involves the appellant’s refusal to submit to the breath analysis test, thereby denying the evidence needed to support a charge.
The behaviour that constitutes an offence against s 47 is quite separate from, more serious than, and over and above the behaviour which constitutes an offence against s 47B. An alcohol reading is not always necessary to make out an offence against s 47, but may be obtained to support the charge or in order to widen the prosecutorial discretion. After committing and being charged with the offence against s 47, there was then the appellant’s additional behaviour, which is the basis of count 2. In my view, as far as conviction is concerned, the two offences are quite separate.
I reject that ground of appeal.
Appeal Against Sentence
The appellant argues that a term of imprisonment for count 1 is manifestly excessive and, further, that the order to make the licence disqualification on count 2 cumulative upon that in relation to count 1 is wrong in principle.
Although this was serious offending, the magistrate noting that the appellant was intending to travel a very significant distance, fortunately no one was injured. The appellant did pull his vehicle over and get himself out of his vehicle. The appellant had no relevant antecedents. In my view, bearing in mind the factors set out in s 11 of the Criminal Law (Sentencing) Act 1988 (SA), a term of imprisonment is excessive for a first offence in these circumstances.
Although I have found that counts 1 and 2 are quite separate, nevertheless there is a common thread concerning his behaviour which covers both counts 1 and 2. Obviously, he behaved in the manner that he did in relation to count 2 because of the effects of alcohol, which was the basis of count 1. His behaviour in not submitting himself to a breath analysis test did not affect the ability of the prosecution to bring a charge in relation to count 1, to which he pleaded guilty.
In imposing a cumulative period of licence disqualification, the magistrate does not appear to have had regard to the well-established principle of totality.[5] In Soroba v Police,[6] Layton J said:[7]
In relation to whether or not a sentence or period of disqualification is manifestly excessive, some further principles need to be considered.
In the situation where the legislature provides for a minimum period of disqualification for each offence, it has been said that the order shall ordinarily be cumulative…[A] relevant factor to take into account is the intention of Parliament in imposing mandatory disqualification for each such offence. However it is still a matter for discretion in all the circumstances and the real issue is whether the periods of disqualification adequately reflect the seriousness of the particular offence.
[5] Mill v R (1988) 166 CLR 59.
[6] [2005] SASC 259.
[7] Ibid [20]-[21].
In this case, given the fact that the appellant’s intoxication led to the behaviour constituting both counts 1 and 2, and that the magistrate imposed more than the minimum period in relation to count 1, the total period is excessive.
For Re-Sentencing
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.