FORIGLIO v Love
[2013] WASC 172
•2 MAY 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: FORIGLIO -v- LOVE [2013] WASC 172
CORAM: McKECHNIE J
HEARD: 2 MAY 2013
DELIVERED : 2 MAY 2013
FILE NO/S: SJA 1019 of 2013
BETWEEN: DAVID ANTHONY FORIGLIO
Appellant
AND
JODI LOVE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE B M LANE
File No :PE 1453 of 2013
Catchwords:
Road traffic - Driving with drugs in blood - Licence suspended - Whether appropriate - Courts and judges - Natural justice - Whether necessary to give notice of possible suspension following endorsed plea of guilty - No new principles
Legislation:
Road Traffic Act 1974 (WA)
Result:
Appeal allowed on grounds 1 and 2
Order for licence disqualification set aside
Category: B
Representation:
Counsel:
Appellant: Ms A McGregor
Respondent: Mr C M Beetham
Solicitors:
Appellant: Michael Tudori
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Logan v Weary (1984) WAR 41
Svenson v Cooper (1986) 4 MVR 150
Warren v Van den Berg [2004] WASCA 32
McKECHNIE J:
How this matter comes to court
On 18 May 2012 the appellant was riding a motorcycle in The Strand, Dianella, when he was involved in a serious single vehicle crash. He was subsequently charged and convicted of driving without a helmet. No appeal is brought against the fine of $100.
He was also charged with riding a motorcycle while a prescribed illicit substance was present in his blood: Road Traffic Act 1974 (WA) 65AC(1). He was fined $500. A licence disqualification for a period of 6 months was imposed.
The appeal
The magistrate's reasons for disqualification were commendably brief and are: 'The reason for that is the accident and the fact that he was under the influence of methylamphetamine at the time'.
He challenges the order for disqualification:
(1)The learned sentencing Magistrate made an express error in the reasoning for imposing the disqualification period that the appellant was under the influence of methylamphetamine;
(2)The learned sentencing Magistrate erred in exercising her discretion to impose a sentence that was manifestly excessive in all of the circumstances; and
(3)The learned sentencing Magistrate erred in failing to allow the appellant the opportunity for matters personal to the appellant to be placed before the Court in opposition to the making of the order.
Ground 3
The third ground can be disposed of immediately. The magistrate made no such error. The appellant entered a written endorsed plea of guilty. There was no requirement for the magistrate to postpone sentencing in circumstances where the appellant had elected not to come to court and provide an explanation or matters of mitigation.
The fact that his solicitor had told him that he would only receive a fine is neither here nor there. It was open to the appellant to write a letter of explanation or mitigation to the Court with his endorsed plea. I dismiss ground 3.
Ground 1
The respondent characterises the magistrate's expression as an infelicity of language. I am unable to agree. The justification for a six month sentence is because the accident occurred when the appellant was under the influence of methylamphetamine. However, there was no evidence as to that fact. The Road Traffic Act s 64AB imposes a more serious penalty and an automatic disqualification for driving a motor vehicle while impaired by drugs. Section 64AC, the offence to which the appellant pleaded guilty, is a less serious offence committed when driving a motor vehicle while a prescribed illicit drug is present. I uphold ground 1.
Ground 2
This was the appellant's first offence under the Road Traffic Act s 64AC. The penalty for a first offence is a fine of not more than 10 penalty units. The penalty for a second offence includes a requirement of disqualification for a period of not less than 6 months.
The power to order a driver's licence disqualification for a first offence arises from the Sentencing Act 1995 (WA) s 105. In circumstances where Parliament has not imposed a mandatory disqualification it is necessary for some special aspect of the case which requires disqualification either for the protection of the community or for deterrence.
I refer to the decision of Burt CJ in Logan v Weary (1984) WAR 41. In dealing with a similar section which was then in the Road Traffic Act his Honour said:
I do not want to say a great deal about that section beyond observing this: It gives a general power to disqualify in a case where an offence has been committed of which the driving or using of a motor vehicle is an element. It is a jurisdiction which seems to hover over the whole of the Traffic Act and over all the other laws of the State, but when one is dealing with a particular offence committed under the Traffic Act which has no particular circumstance of aggravation about it, I think it may be a wise counsel if people were to be punished in accordance with the punishment indicated in the Act as being directly referable to the offence which they have committed. In other words, I am saying that the jurisdiction conferred by s 74 should not be exercised, so to speak, as of course. I think you must be looking for some particular circumstance in the case being dealt with to justify the use of the s 74 disqualification power.
As Roberts‑Smith J pointed out in Warren v Van den Berg [2004] WASCA 32 [20]; Olney J in Svenson v Cooper (1986) 4 MVR 150 followed and applied what has been said in Logan v Weary in a manner which I do not think materially is different from what was said by Burt CJ.
In any event, I respectfully agree with the wise counsel suggested by Burt CJ. In the circumstances of this case, there was a serious crash although only the appellant was involved. He pleaded guilty at the first opportunity.
Leaving aside the matter of ground 1, which I have upheld, the only matter which might make this case, as it were, out of the ordinary is the fact of the crash. There is no evidence as to how it occurred. I consider this is a case where the imposition of a 6 month disqualification is a manifest error in that it is excessive in the circumstances of this case. There is nothing sufficient to take it out of the ordinary punishment provided under the Road Traffic Act. I uphold ground 2.
Disposition
The result is that the appeal succeeds on grounds 1 and 2. I allow the appeal and set aside the order for licence disqualification.
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