Graham v Police

[2006] SASC 150

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

GRAHAM v POLICE

[2006] SASC 150

Judgment of The Honourable Chief Justice Doyle (ex tempore)

10 May 2006

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES

The appellant pleaded guilty to traffic offences in the Magistrates Court - the offences included one count of refusing to submit to a breath analysis instrument - driving a motor vehicle on a road without an appropriate licence and driving on Gawler Place contrary to road signage - appeal is out of time - whether to grant an extension of time - consideration of the circumstances of the case - consideration of whether the appeal has a reasonable prospect of success - no reasonable prospect of success - application for extension of time within which to bring the appeal refused.

Criminal Law (Sentencing) Act 1988 (SA) s 18A; Road Traffic Act 1961 (SA) s 47E(6)(d)(a), referred to.

GRAHAM v POLICE
[2006] SASC 150

Magistrates Appeal:  Criminal

1. DOYLE CJ (ex tempore): This is an appeal against sentence.

2. Mr Graham pleaded guilty in the Magistrates Court on 2 August 2005 to several traffic offences.  They were refusing to submit to a breath analysis, driving a motor vehicle on a road while he did not hold an appropriate licence and driving a motor vehicle on Gawler Place contrary to a “No entry” sign; three separate offences.

3. In brief, it appears that Mr Graham drove in a northerly direction up Gawler Place at 9.50 pm one Saturday night in March 2003.  He drove past “No entry” signs into and across Rundle Mall.  When the police stopped him, he admitted he did not have an appropriate licence.  They administered an alcotest which recorded a positive reading, but Mr Graham then declined to submit to a breath test.  He tried to contact his lawyer, but was unable to do so, and that may have been a factor.

4. As I said, Mr Graham pleaded guilty to all of these offences and was represented by a solicitor. The Magistrate exercised the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 and imposed a single sentence.  He convicted Mr Graham, fined him $750 and ordered that he be disqualified from holding or obtaining a driver’s licence for a period of 12 months beginning on 8 August 2005.

5. I mention that the Magistrate was told that Mr Graham had previous traffic offences in 1988. They were relatively minor, those in December 1988, but in November 1988 there had been two offences of failing to comply with a direction to submit to an alcotest or breath analysis. Those offences are relevant to the offences with which I am now dealing. The Magistrate also made an alcohol inter-lock order as required by s 47E(6)(d)(a). That all happened on 2 August 2005.

6. On 28 March 2006 Mr Graham filed a Notice of Appeal.  This is well outside the permitted time.  I invited Mr Graham to explain to me the basis upon which he sought an extension of time and he did so.  He was unrepresented before me.  The explanation he gave was that several months ago he was diagnosed as suffering from lung cancer.  He tendered a medical report which confirms that he is having treatment for lung cancer.  The report does not indicate when the diagnosis was, but Mr Graham said it was six or seven months ago and I am prepared to accept that.

7. The doctor says that Mr Graham needs or would benefit from the use of his own motor car when travelling for treatment to avoid him having to expose himself to cold air and to contact with other people from whom he might catch infections.  The doctor says that Mr Graham is short of breath, and has a reduced immune system, and is generally physically debilitated.  I accept that evidence as well.

8. While on that topic of the treatment, it is convenient to record that Mr Graham told me that he lives at Ingle Farm and is getting treatment at the Royal Adelaide Hospital.  There is a direct bus route from Ingle Farm to the hospital, but he has to walk some distance to the bus and from time to time no doubt would have to wait for buses.  He goes for treatment about once a week.

9. In considering whether I should grant an extension of time, I have to consider the reasons for delay and I have outlined them.  I think there is a reasonable explanation for delay, although it seems to me not for the length of delay that has occurred.  However, as to that, Mr Graham made the point that he was very unwell for some time and did not turn his mind to the possibility of an appeal.  I also have to have regard to the length of delay, to the prospects of success and I have a general discretion in the matter.

10. In relation to the extension of time, if the appeal has reasonable prospects of success, I consider it would be appropriate to grant an extension of time and so I turn to the prospects of success. 

11. The penalty that the Magistrate imposed was the minimum permissible in the circumstances, that is, a licence disqualification of 12 months.  Under the legislation the Magistrate could impose a lesser licence disqualification only if he was satisfied that the offences were trifling offences.

12. I invited Mr Graham to tell me about the circumstances of the offence so that I could consider that matter.  Mr Graham told me that he had had a very bad day at work, he had been having trouble in the work environment and was feeling stressed and upset.  He more or less admitted to me that he had been drinking and had drunk more than he should.  Partly because of the drink, and partly because he was unfamiliar with the city area, he became disorientated. That was his reason for doing what, to many people, would be a surprising thing: driving across Rundle Mall.  Unfortunately, I cannot accept that in the circumstances his offences were trifling.

13. As to the refusal to undergo a breath analysis, there is nothing trifling about the offence or about the circumstances of it.  As to the circumstances of the driving, I think that, if anything, what Mr Graham told me suggested it was not a trifling offence.  I can conceive of circumstances in which something similar to what he did might be treated as trifling, but I think the combination of drink and the failure to make proper observations of where he was going make it impossible for me to say that the offence was trifling.

14. That means that even if I were to extend the time within which to appeal, I would have to dismiss the appeal.  It really leads me to the conclusion that the appeal has no reasonable prospects of success.  Accordingly, for those reasons, I refuse to extend the time within which to appeal and I indicate, as I have really already, that even if I were to extend the time within which to appeal, I would have had to dismiss the appeal, and so an extension of time within which to appeal is refused.