FARRELL v Police - [2008] SASC 183

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
FARRELL v POLICE
[2008] SASC 183
Judgment of The Honourable Justice White (ex tempore)
17 June 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRELIMINARY PROCEDURE - TIME FOR APPEAL AND EXTENSION OF
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
Magistrates appeal - Road Traffic Act 1961 s 47B - appellant convicted for having the prescribed concentration of alcohol in his blood - appeal against sentence - extension of time sought to file appeal - whether sentence imposed outside acceptable range of sentencing discretion - whether period of licence disqualification manifestly excessive - no error shown - extension of time for the commencement of the appeal refused - appeal dismissed.
Road Traffic Act 1961 (SA) s 47B, s 47IAA; Supreme Court Rules 2006 r 283, referred to.
Mill v Police [2007] SASC 253; R v Foster (1996) 187 LSJS 135; Gallo v Dawson (1990) 93 ALR 479; Gikas v Police (1999) 202 LSJS 301, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"extension of time"

FARRELL v POLICE
[2008] SASC 183
Magistrates Appeal (ex tempore)

WHITE J: This is an appeal against a sentence imposed by a magistrate.
The appellant pleaded guilty to two offences both of which were committed on 11 June 2006. The first was the offence of driving his car on the Grove Way, Salisbury Heights at a speed of 94 km/h where the applicable speed limit was 60 km/h.
The second offence was that his blood alcohol content of 0.218 grams in 100 ml of blood at the time was a contravention of s 47B of the Road Traffic Act 1961 (RTA).
At the time of detection of this offence, the police, acting under s 47IAA of the RTA, imposed an immediate licence disqualification of 12 months. The appellant has served that licence disqualification in full.
The appellant’s blood alcohol content of 0.218 grams meant that the PCA offence was a category 3 offence. Although the appellant did have prior PCA convictions, this offence had to be treated as a first offence for the purpose of identifying the appropriate maximum and minimum penalty. That meant that the applicable penalty was a fine of not less than $700 and not more than $1200 and a licence disqualification for a period of not less than 12 months.[1]
[1] RTA s 47B(1), (3).
In respect of the speeding offence, the magistrate fined the appellant $400. In respect of the PCA offence, the magistrate fined the appellant $900 and additionally disqualified him from holding or obtaining a driver’s licence for nine months. In fixing that period of licence disqualification, the magistrate took into account, as required, the police-imposed licence disqualification of 12 months. If he had not taken it into account, the magistrate would have had to impose a licence disqualification of at least 12 months.[2]
[2] RTA s 47IAA(9). See also Mill v Police [2007] SASC 253.
The appellant appeals against part of his sentence, namely the licence disqualification for the period of nine months. The sole ground of appeal is the complaint that the licence disqualification of nine months is manifestly excessive.
The magistrate imposed the sentence on the appellant on 26 November 2007. The notice of appeal was not filed in this Court until 14 April 2008. That is well outside the 21 day period for the commencement of an appeal fixed by r 283 of the Supreme Court Civil Rules 2006.
The notice of appeal was filed by solicitors retained by the appellant but those solicitors no longer act for him. The appellant was unrepresented during the hearing of the appeal.
The notice of appeal indicates that the appellant seeks an extension of time on the ground that he was unrepresented at the hearing before the magistrate; had not taken legal advice prior to the hearing before the magistrate; and had only recently sought legal advice.
The appellant has not filed any affidavit in support of his application for an extension of time. He informed me this morning that the reason for an appeal not having been commenced sooner was that he was unaware of his appeal entitlements until shortly before the notice of appeal was filed.
The extension of time required in this matter is substantial. I consider it appropriate to consider at the outset whether or not an extension of time should be granted to the appellant.
This court must, for the purpose of the orderly disposition of its own business and generally for the purpose of the better administration of justice, require parties to comply with the time limits for the commencement of appeals.[3] The underlying principle is that the rules of Court should be obeyed. However, that principle is not to be applied in an inflexible manner and an extension of time within which to commence an appeal may be granted when it is necessary to do justice between the parties or to avoid a miscarriage of justice.[4]
[3] R v Foster (1996) 187 LSJS 135 at 139.
[4] Gallo v Dawson (1990) 93 ALR 479.
When considering an application for an extension of time, the Court has regard to four principal matters. They are the length of the delay; the explanation for the delay; any prejudice which the respondent to the appeal may suffer if the extension is allowed; and, lastly, whether there is some prospect that the appeal may be successful in the event that the extension is granted.
As I have already noted, the length of the extension sought in this matter is quite substantial. That is especially so when it is remembered that the appellant is appealing against a licence disqualification which commenced at the time of the magistrate’s order on 26 November 2007.
I have noted the appellant’s explanation for the delay, namely an absence of awareness on his part that it was possible to exercise an entitlement to appeal against the magistrate’s order. Although that explanation has not been provided in an affidavit,[5] I am prepared to accept that that is the explanation for the appeal not having been lodged sooner.
[5] Cf Gikas v Police (1999) 202 LSJS 301.
The respondent does not allege that any particular prejudice would be occasioned if the extension of time is allowed.
I turn then to the last of the four matters, namely, whether the appellant has demonstrated some prospects of success in the appeal if the extension of time is allowed.
The period of disqualification imposed by the magistrate is nine months more than the minimum required by s 47B(3) of the RTA. In considering whether that was outside an acceptable level of sentencing discretion it is relevant to note that the PCA offence committed on 11 June 2006 is the appellant’s fourth PCA offence. However, although the police prosecutor has deposed that he told the magistrate about each of the three previous PCA offences, the appellant this morning has said that the magistrate was told only about the last of those, namely, an offence committed in 1989. I do not consider that it is necessary for the purposes of resolving this morning’s matter to consider who is correct in that respect. I am prepared to act on the basis which is most favourable to the appellant. I am satisfied that the question of whether or not it is reasonably arguable that the disqualification of nine months was excessive can be assessed by reference only to the previous PCA offence committed by the appellant in 1989 and for which he was sentenced in 1990. By itself, it means that the appellant did not come to the Court with a clean record and that it was not possible for the magistrate to treat him in the same way as he would have, had this been his first PCA offence.
The principles upon which the Court acts in determining whether to interfere with a sentence imposed by a magistrate are well-established. The selection of an appropriate penalty in each case involves an exercise of discretion. This Court does not interfere with the exercise of discretion by a magistrate simply because it may not have exercised that discretion in the same way. It has to be satisfied that the magistrate made some error.
In a case like the present, that means that the Court would have to be satisfied that the magistrate acted on some wrong principle, or had regard to an irrelevant consideration, or failed to have regard to a relevant consideration, or even though no specific error of any of those kinds could be shown, that the sentence imposed was so outside an acceptable range of sentencing discretion that it ought not to be allowed to stand.
The appellant points to the fact that the total period of disqualification which he will be required to serve is a period of 21 months and that that is nine months more than the minimum required by statute. He also points to the considerable inconvenience being caused to his partner and him in consequence of the disqualification.
However the minimum disqualification required by statute is just that, a minimum. The magistrate was entitled to impose a licence disqualification which exceeded that. In the present circumstance, the very high reading of the appellant at the time of the offence was a very relevant consideration and, as already noted, the appellant did have, at the least, one previous court appearance for a PCA offence. These matters suggest that it would be quite difficult to establish that the sentence was manifestly excessive in the sense which I have explained.
On my assessment there are insufficient prospects that the appeal, if an extension of time was allowed, would be successful. Putting it another way, I am satisfied that it is not reasonably arguable that an extension of time within which to commence the appeal is necessary in the interests of justice.
I appreciate the force of the submission of the appellant that he and his partner are considerably inconvenienced by the continuance of the disqualification. As I sought to explain to the appellant during the course of the argument, inconvenience of this kind underpins in a significant way the effectiveness of the punishment which the disqualification involves. It is commonly the fact that those whose licences are disqualified or suspended will experience considerable personal inconvenience. In that way the law seeks to deter them, and others, from a repetition of the same conduct.
For these reasons, I refuse to extend the time within which the appeal may be commenced. Accordingly, the appeal is dismissed.