FLOWER v POLICE No. SCGRG-98-361 Judgment No. S6648

[1998] SASC 6648

FLOWER  v  POLICE

Magistrates Appeal
Mullighan J

This is an appeal against sentence imposed by a learned Magistrate on 24th February 1998 upon the appellant having been convicted upon his plea of guilty of driving a motor vehicle on a road while there was present in his blood the prescribed concentration of alcohol as defined in s47A of the Road Traffic Act, 1961, contrary to s47B of that Act.

The circumstances of the offence are that at about 1.50am on Sunday, 12th October 1997 the appellant was driving along Duthy Street at Parkside when he was stopped by a random breath testing unit.  Upon testing, he was shown to have a concentration of alcohol of 0.169 grams in a hundred millilitres of blood.

The appellant attended Court and was represented by counsel.  He pleaded guilty and was convicted and fined $1,200 and disqualified from holding or obtaining a licence to drive a motor vehicle until further order.  These penalties are the maximum which could be imposed for this offence.  Pursuant to ss47B(1) and (3), for a first offence, the fine which must be imposed was not less than $700 and not more than $1,200 and there is a mandatory licence disqualification for such period as the Court thinks fit but not less than twelve months.

This was a first offence as defined in the Act as the appellant had not been convicted of such an offence at any time within the five years immediately preceding the commission of the subject offence: see s47B(4). However, on 14th November 1990 he was convicted in the District Court of having driven a motor vehicle in a manner dangerous to the public and thereby causing bodily harm to another: contrary to s19A of the Criminal Law Consolidation Act 1935. He was sentenced to imprisonment for two years and six months with a non-parole period of six months. That sentence was not suspended and he was disqualified from holding or obtaining a licence to drive a motor vehicle for a period of five years. The appellant has no other previous convictions and apparently served that part of his sentence on parole without incident. There is no suggestion that he was in breach of the order of disqualification.

The learned Magistrate took a very serious view of the offending of the appellant.  In her remarks on sentencing, she said:

“The reading is high, and that alone is bad enough.  There appears to be absolutely no excuse for the offending.  The defendant had been out at dinner and couldn’t bear the thought of walking past his car when it came time to go home.

But this defendant, of all defendants, ought to have known that if he drove after he had been drinking, he would be a menace on the road, a danger to other road users.”

She went on to say that he was not to be punished twice by reason of his previous offending and referred to the previous offence.  She said that he had served six months’ imprisonment “because he had been drinking, he was involved in an accident, and somebody was hurt”.  She went on to say that she knew no details of that offence other than those bare facts.  She then said:

“He went on to obtain university qualifications, and got himself into employment, and on the face of it he had rehabilitated.  But on this occasion he also started drink driving again, and he was apprehended for it, in Duthy Street.

This defendant, more than the vast majority of who come before this court, should have fully understood the consequences of drinking and driving and the danger that it presents, not only to the defendant but to others using the road.

He has blatantly ignored the leniency that he was given, by the District Court.  The non parole period was only 20 percent of the head sentence.  He was not disqualified until further order.

In relation to this matter the defendant will be fined the maximum amount of $1200 because, in my view, this case is one of the worst of its type.  He will also be disqualified from holding or obtaining a driver’s licence until further order.

As prison and five years disqualification could not get the message through, then I can think of no other penalty that is appropriate in this case.

He is the only defendant I have ever disqualified until further order by reason of the menace he so obviously presents to other road users.”

The appellant is aged 28 years.  In November 1990 when he was sent to prison he was aged about 22 years.  After his release he went to the University of South Australia and obtained a degree in Business majoring in property which, I understand, is a qualification obtained by real estate valuers.  He is employed in a large real estate and property management firm as a consultant in asset management and valuation.  Credit must be given to the appellant for the manner in which he rehabilitated himself after serving the time in prison.

This offence of driving a motor vehicle with the prescribed quantity of alcohol in the blood is not attended by any aggravating circumstances if aggravation is possible.  The appellant was not charged with driving under the influence of alcohol or with any other offence.  The seriousness of this offence is to be found in the blood alcohol level.  It falls into the most serious of the three categories fixed in the legislation because it is, or exceeds, 0.15 grams of alcohol in 100 millilitres of blood.  However, it could hardly be described as one of the worst cases of its type within that category.  Regrettably the Courts are often faced with blood alcohol levels well in excess of 0.169.

At the hearing of this appeal a table from the statistical report of the Office of Crime Statistics for the year 1996 setting out penalties imposed for this offence was received.  That table discloses that in that year there were 889 cases before the Courts where the blood alcohol level was between 0.150 and 0.199, 223 cases where the level was between 0.200 to 0.249 and 45 cases where the level exceeded 0.250.  It may be seen from this information that the offence of the appellant with a blood alcohol level of 0.169 could not be regarded as “one of the worst of its type”.  In order to reach that conclusion, the learned Magistrate necessarily brought to account the previous offending of the appellant.

There was little information before the learned Magistrate about that matter as she acknowledged.  She was not informed of the blood alcohol level of the appellant at that time, the manner of driving and the extent of bodily injury suffered by the person injured.  Obviously the appellant’s prior offending was regarded seriously by the sentencing Judge in view of the custodial sentence which was not suspended despite the age of the appellant at the time.  However, there is no reason to suppose that the offending, along with the present offence, justified the conclusion that the appellant had “blatantly ignored the leniency which had been extended to him” by the sentencing Judge such as it was or that he was “the menace he so obviously presents to road users” as she accepted.  As has been mentioned, the appellant did not re-offend whilst on parole or during the lengthy period of licence disqualification.  The appellant had rehabilitated himself in a strikingly successful way and had since lived a law abiding and productive life until he committed the subject offence.  It is quite wrong, in my view, to say that he had “blatantly ignored the leniency which had been extended to him”.  On the contrary, it appears that he made the most of it. 

Obviously his prior offending is relevant in the sentencing exercise but I think it has been over-emphasised by the learned Magistrate as to its true significance in the sentencing process.  It could not be used to categorise his offending of driving with the prescribed blood alcohol level as “one of the worst of its type”.  It should not be used to categorise the appellant as a menace to other road users so as to justify the sentencing approach taken by the learned Magistrate.  Clearly his driving with a blood alcohol level of 0.169 is a serious breach of the law deserving appropriate punishment, but his prior offending may not be used so as to make that punishment unjust.  The proper use of prior offending in the sentencing process is discussed in Veen v The Queen (No 2) 164 CLR 465. Mason CJ, Brennan, Dawson and Toohey JJ said at pp477-478:

“..... the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence.  To do so would be to impose a fresh penalty for past offences:  Director of Public Prosecutions v Ottewell [1970] AC 642, at p650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner’s claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community’s understanding of what is relevant to the assessment of criminal penalties.”

Having regard to those matters, in the present circumstances, it is wrong in principle to use the previous offence as a basis for the maximum penalty which is not justified by the offence itself.  It could not be said that the offending of the appellant displays a continuing attitude of disobedience of the law or that he has a dangerous propensity from which the community must be protected which appears to be the view taken by the learned Magistrate.  The appellant’s offending was, regrettably, an all too familiar example of not uncommon conduct in the community by otherwise law abiding citizens.

As was also observed in Veen (No 2), at p478, the maximum penalty prescribed for an offence is intended “for cases falling within the worst category of cases for which that penalty is prescribed:  Ibbs v The Queen (1987) 163 CLR 447 at pp451-452”. An offence which is towards the lower end of a category three offence could not be so described. Even if it is permissible to make the classification having regard to prior offending which I reject, the classification by the learned Magistrate was wrong.

Also, I think the learned Magistrate erred in not having regard to the plea of guilty of the appellant which was entered at an early opportunity.  Whilst the extent to which a sentence should be reduced for this offence may be less than for offences where proof of guilt may be more complicated, nonetheless some reduction is appropriate.

I mention one other matter with respect to the order made by the learned Magistrate for disqualification of licence.  She made the order:

“... pursuant to the general power re commission of offence involving motor vehicle, not s47B powers re disqualification.”

Presumably the learned Magistrate was referring to the power to disqualify in s168 of the Act in cases where a person is convicted of an offence against any provision of the Act relating to motor vehicles.  Under that section the Court may disqualify for a fixed period or until further order.  Nothing could be gained by acting under that section.  There was ample power under s47B to deal with the appellant justly.  Indeed, the extent of the power is the same under both sections.

The learned Magistrate erred in the exercise of the sentencing discretion.  The sentence is so disproportionate to the seriousness of the offence and is manifestly excessive.  The sentencing discretion must be exercised afresh.  Having due regard to the gravity of the offence, the prior offending of the appellant and his personal circumstances, the appropriate penalty is a fine of $900 and licence disqualification for a period of 18 months.

The appeal is allowed and the penalties imposed by the learned Magistrate are set aside.  I impose a fine of $900 and the appellant is disqualified from holding or obtaining a licence to drive a motor vehicle for a period of 18 months.  The court fees of $83, prosecution costs of $16 and the levy of $28 remain.  I allow the appellant six months in which to pay the fine and the fees, costs and levy.