Edwards v Police No. Scgrg-00-330

EDWARDS v POLICE
[2000] SASC 121

Magistrates Appeal: Criminal

MULLIGHAN J This is an appeal against the sentence imposed by the learned Magistrate sitting at the Magistrates Court at Port Adelaide on 20 March 2000.
The appellant pleaded guilty to driving a motor vehicle on a road at Regency Park on 24 August 1999 with the prescribed concentration of alcohol in his blood contrary to s.47B of the Road Traffic Act 1961. His blood alcohol level was 0.1 grams in 100 millilitres of blood. He was fined $1,500 with costs and a levy, and disqualified from holding or obtaining a licence to drive a motor vehicle for a period of three years.
He appeals on the ground that both the fine and the licence disqualification are manifestly excessive.
At about 9.12 p.m. on 24 August 1999, the appellant was driving a motor vehicle along Days Road at Regency Park and was stopped at a random breath testing station. He undertook the usual procedures, and breath analysis testing revealed the reading which I have mentioned.
The appellant is aged 61 years. He is employed as a duty manager at a hotel.
On the occasion in question, he told the police that he had consumed two cans of beer at home, and then three or four more schooner glasses of beer at the Angle Park greyhound racing track, and that he had not had anything to eat since lunchtime.
He requested a blood test kit, which was used at a time which has not been specified, on the same day, and was found to have a blood alcohol level of 0.88. There is no reason to question the accuracy of the breath analysis at the random breath testing station.
The appellant has a number of relevant previous convictions. On 11 February 1976, he was convicted of the offence of driving a motor vehicle whilst under the influence of alcohol, and was fined $140 and his licence was disqualified for six months.
On 22 November 1982, he was convicted of driving a motor vehicle whilst under the influence of alcohol, and was fined $550. His licence was disqualified for a period of 15 months.
On 16 December 1997, he was convicted of driving a motor vehicle with a proscribed concentration of alcohol in the blood, and was fined $500 and his licence was disqualified for a period of six months.
The offence which is the subject of this appeal is a Category 2 offence, as defined by s.47A of the Act, as the blood alcohol level was not less than 0.08 and was less than 0.15. It was also a second offence for the purposes of penalty. As the offences which the appellant committed in 1976 and 1982, although relevant previous offences, were not committed within five years of the subject offence, they therefore could not be regarded as first or second offences; see s.47B(4).
The penalty for a second offence, being a Category 2 offence, is a fine of not less than $700, and not more than $1,200, with licence disqualification of not less than 12 months.
The penalty for a Category 3 offence, where the blood alcohol level is 0.15 or more, if a second offence, is a fine of not less than $1,200 and not more than $2000, with licence disqualification for such period, being not less than 3 years, as the court thinks fit.
The penalty for a subsequent offence, being a Category 2 offence, is a fine of not less than $1,100 and not more than $1,800, with a licence disqualification of not less than two years.
Obviously, the learned Magistrate has made an error. He has regarded the subject offence as either a Category 3 offence, or as a subsequent offence; that is, an offence subsequent to a second offence. That error can be seen by the amount of the fine of $1,500, which is outside the range for a Category 2 offence, which is a second offence. So that the sentence must be set aside and the sentencing discretion exercised afresh.
Mr Kavanagh urges, on behalf of the appellant, a fine and licence disqualification at or near the minimum which must be imposed. He submits that the blood alcohol level was close to the bottom of the Category 2 range, there was nothing untoward about the appellant's manner of driving, he co-operated with the police, and he was not assessed as being dependent upon alcohol. I mention that, after pleading guilty, he was referred for mandatory assessment, having committed a drink driving offence within the preceding 2 years, and the report was that he was not dependent on alcohol.
It may be added to this list of favourable matters that the appellant pleaded guilty at the first opportunity.
I do not regard his offending in 1976 and 1982 as irrelevant for present purposes. Whilst those offences were committed a relatively long time ago, they were serious offences of drink driving. They should have brought home to the appellant the seriousness of drinking and driving, and the serious manner in which the law regards offences of that nature.
He committed the next of his previous offences, as I have said, on 16 December 1997. It appears that he received a minimum fine and period of licence disqualification on that occasion but, again, the seriousness of this type of offence should have been brought home to him.
Less than two years later, he committed the offence again.
There are three major sentencing principles which are relevant to this matter. The first is adequate punishment. A person who has committed drink driving offences on three previous occasions must expect a punishment which is adequate and which will be more than the minimum allowed by Parliament, otherwise, in my view, the sentence could not be regarded as adequate. The fact that Parliament has excluded offences committed more than five years before the subject offending for the purpose of categorising offences, does not, in my view, mean that they are to be regarded as irrelevant.
The second principle is that of community protection. A person who commits this offence is a danger to the public, for obvious reasons, and that is a matter which must be reflected in the sentence.
The third principle is that of deterrence, both personal and general. Because of the previous convictions, there seems, regrettably, to be a need for personal deterrence. The sentence must be such that the appellant is himself deterred from re-offending. There is also a need to impose a sentence, having regard to general deterrence, so as to indicate that those who are minded to commit this offence would be adequately punished and thereby deterred from committing the offence.
The fourth main sentencing principle is that of rehabilitation. I am prepared to accept that the appellant is otherwise a law abiding citizen. He is in employment, and it may be accepted that he otherwise conducts his life responsibly, but I am concerned that he is a re-offender, and so it may be said that in the context of drink driving offences there is nothing to indicate that he is rehabilitated.
Having regard to all of those matters, I do not think it is appropriate to impose sentences of the minimum provided by Parliament. As I have said, the appeal must be allowed and the sentences imposed by the learned Magistrate quashed, and I make those orders.
I impose a fine of $1,000. The orders for payment of costs and a levy remain.
I order that the appellant be disqualified from holding or obtaining a licence to drive a motor vehicle for a period of 18 months.
The learned Magistrate ordered that the commencement of the period of licence disqualification which he imposed be 12.01 am on 1 May 2000. There has been no suspension of that order of disqualification since the institution of this appeal and I am informed that the appellant has observed that order.
For those reasons, I order that the period of disqualification imposed by me commence at the same time as that fixed by the Magistrate.

[2000] SASC 121

4 May 2000