Gregory Thomas Welch v SA Police No. 4267 Judgment No. SCGRG 93/999 Number of Pages 3 Criminal Law and Procedure Particular Offences Driving Offences

[1993] SASC 4267

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA NYLAND J

CWDS
Criminal law and procedure - particular offences - driving offences - Appellant convicted of four driving offences - sentenced to a term of imprisonment and disqualified from holding or obtaining a driver's licence for 14 years - disqualification held to be manifestly excessive - appeal allowed period of disqualification reduced to 6 years. Road Traffic Act (SA) 1961 s.47j, 172(l), 47(3).

HRNG ADELAIDE, 2 November 1993 #DATE 18:11:1993
Counsel for appellant:     Mr A C Button
Solicitors for appellant:    Aboriginal Legal Rights
   Movement
Counsel for respondent:     Mr S Gupta
Solicitors for respondent: Attorney-General's
   Department

ORDER
Appeal allowed.

JUDGE1 NYLAND J The appellant on the 23rd day of April 1993 in the Court of Summary Jurisdiction at Berri pleaded guilty to four offences arising out of events which occurred on 5th November 1992 at Renmark. On the charge of driving a motor vehicle while so much under the influence of intoxicating liquor as to be incapable of exercising effective control of said vehicle contrary to provisions of s.47 of the Road Traffic Act 1961 he was sentenced to be imprisoned for a period of four months. On the charge of driving a motor vehicle whilst disqualified from holding or obtaining a licence contrary to provisions of s.91 of the Motor Vehicles Act 1959 he was sentenced to be imprisoned for five months. The learned Special Magistrate directed that the sentences be served cumulatively. The learned Special Magistrate further ordered that the appellant be disqualified from holding or obtaining a driver's licence for a period of fourteen years. 2. The appellant abandoned his appeal against the term of imprisonment that he had received as by the time the appeal came on for hearing he had served his term of imprisonment and had been released. He contended thereafter only one ground of appeal, namely, that the period of disqualification fixed by the learned Special Magistrate was manifestly excessive. On the hearing of the appeal the respondent conceded that the period so imposed was manifestly excessive but submitted that a substantial period of disqualification was still required. 3. It is clear that the appellant's manner of driving was appalling. A police patrol observed the appellant at about 11.30pm driving a Holden Station Sedan along Renmark Avenue at Renmark with no tail-lights illuminated. The police followed the vehicle for a short distance and observed it veer to the incorrect side of the road where it stayed for about 30 metres. It was travelling at about 80 kilometres per hour. It returned to the correct side of the road and travelled to the section of Renmark Avenue which changes from a two-lane road to a four-lane road, consisting of a two-lane carriageway for each direction, divided by a median strip. The appellant travelled in the left lane then after a short distance veered to the right so that his vehicle straddled the centre white broken line of the two lanes for a distance of about 15 metres. He then indicated to turn left. The police car operated its flashing lights and siren and indicated to the appellant to pull over and stop without success. The police car continued to follow the appellant who eventually stopped. During conversation with the appellant the police observed a strong smell of liquor on his breath and a subsequent blood alcohol test resulted in a reading of 0.225. When the appellant was interviewed he stated that he had been drinking wine since one o'clock that afternoon until about half an hour prior to being stopped by the police for drink driving. He decided to drive because he had to get the car home so his wife could take the children to school the next day. He said he was drunk and he was not aware that the rear light was not operating. His reason for failing to keep left and straddling lines was that he was drunk. He said he knew that they were trying to stop him but he wanted to get the car home. 4. At the time of sentence the appellant was aged 30 years. He resided at Renmark with his wife and five young children. He is a part-Aboriginal and was a full-time TAFE student prior to his incarceration at Cadell Training Centre. He admitted an alcohol problem which he was trying to overcome. He had an extensive record of prior offending, the most relevant of which, for present purposes, are as follows: 4/8/80 PCA - disqualified for six months 19/1/89 PCA - disqualified for fourteen months 10/4/89 DUI - disqualified for four years at expiry of previous disqualification period 2/5/91 DUI - disqualified for four years and six months It is obvious that a substantial period of disqualification was required. 5. Counsel for the appellant submitted that the appropriate order in this case was that the appellant be disqualified from holding or obtaining a driver's licence until further order. He referred to s.47j of the RoadTraffic Act which provides "where a person (a) is convicted of a prescribed offence that was committed within the prescribed area; and (b) has previously been convicted of a prescribed offence committed within three years before the date of the later offence," the Court has power to refer the person convicted to an assessment clinic and, if subsequently satisfied that the person suffers from alcoholism or addiction to other drugs, the Court is empowered to disqualify that person from holding or obtaining a driver's licence until further order. Counsel for the appellant submitted there was sufficient material before the learned Special Magistrate to permit him to determine that the appellant did suffer from an alcohol problem and that, although the offence in this case had occurred outside a prescribed area, that merely took away the benefit the appellant may have had by way of having his medical problem assessed by a clinic. 6. Pursuant to 47j(6) an application may not be made for ratification of the disqualification until the expiration of the minimum period of the disqualification to which the appellant would have been liable if dealt with otherwise than under this particular section. In this case the minimum period that would apply would be three years as prescribed by s.47(3)(a)(ii) of the Road Traffic Act. Section 172 of the Road Traffic Act 1961 deals with applications for removal of orders for disqualification and provides that an application cannot be made within three months after the making of the original order for disqualification. Section 172(1) provides however that: "...the court may, if it thinks it expedient to do so, order that the disqualification be removed as from any date which it thinks proper." 7. At the hearing of the appeal, in order to protect the community and foster the rehabilitation of the appellant, I was attracted by the submission that the appropriate order should be disqualification until further order as it would preclude the appellant from obtaining a further licence until he was able to demonstrate to a court that it was appropriate that such an order be made. The provisions of s.47j of the Act do not however apply to the circumstances of this case and s.47(3) of the Act contemplates that a period be specified by way of disqualification. I have decided in all the circumstances to fix a specified period. Although a substantial period of disqualification is required I am satisfied that in all the circumstances the fourteen years ordered by the learned Special Magistrate is manifestly excessive. 8. The appeal will be allowed and the order for disqualification for a period of fourteen years will be set aside. In lieu thereof I impose a period of disqualification of six years.