GRIFFITHS v Police

[2010] SASC 299

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

GRIFFITHS v POLICE

[2010] SASC 299

Judgment of The Honourable Justice Sulan (ex tempore)

20 October 2010

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING UNDER INFLUENCE OF INTOXICATING LIQUOR OR A DRUG - GENERALLY

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

Appeal against sentence - appellant pleaded guilty to driving with a prescribed concentration of blood alcohol - appeal allowed - Magistrate erred in treating offence as a second offence pursuant to the Road Traffic Act 1961 - appellant resentenced.

Road Traffic Act 1961 (SA) s 47A, s 47B, s 47IAA(2), referred to.

GRIFFITHS v POLICE
[2010] SASC 299

Magistrates Appeal:  Criminal

1. SULAN J:             This is an appeal against sentence. The appellant pleaded guilty to driving with an excessive concentration of blood alcohol, contrary to s 47B(1) of the Road Traffic Act 1961 (SA) (“the Act”).

2. The circumstances of the offending were that at about 3.02 am on 3 June 2010, the appellant was driving on Main Road, Blackwood, when he was stopped by police and breath tested.  The test was positive.  The appellant was taken to the Sturt Police Station where a breath analysis test was undertaken and he returned a reading of .152 g/100 ml of blood.

3. Mr Howell, who appeared for the respondent, submits that there were no aggravating circumstances of the appellant’s driving, and that the police randomly selected the appellant for breath testing. Pursuant to s 47IAA(2) of the Act, the appellant was issued a notice immediately disqualifying him from holding or obtaining a driver’s licence for a period of 12 months, effective from 3 June 2010.

4. On 4 August 2010, the appellant pleaded guilty.  The Magistrate imposed a fine of $1200, a compensation fee of $427.25, in addition to the standard court fees and levies.  She disqualified the appellant from holding or obtaining a driver’s licence for a period of two years and ten months, commencing on 4 August 2010.

5. In her sentencing remarks, the Magistrate observed that, because the appellant’s alcohol reading was over .15 g/100 ml of blood, and it was the appellant’s second offence within five years, the minimum licence disqualification was three years.

6. The appellant had committed a previous offence on 15 November 2004.  He was convicted on 4 August 2005 of driving with an excessive concentration of alcohol in his blood.  On that occasion, he was fined $700 and was disqualified from holding or obtaining a driver’s licence for eight months.

7. The appellant complains that the Magistrate erred in determining that the offence was a second offence, and in imposing a penalty on that basis.  Mr Howell concedes that the Magistrate was in error in that respect.  He agrees that I should set aside the sentence and resentence the appellant.

8. Section 47B of the Act provides that a person who drives a motor vehicle with a blood alcohol concentration of or greater than .15 g/100 ml of blood, commits a category 3 offence, the penalty for which is, for a first offence, a fine of not less than $700 and not more than $1200 and, for a second offence, a fine of not less than $1200 and not more than $2000. In addition, the minimum licence disqualification period for a first offence, being a category 3 offence, is not less than 12 months’ and, in the case of a second offence, being a category 3 offence, for a period of not less than three years. A category 3 offence is committed if the driver has an excess of alcohol in his or her blood equal or greater than .15 g/100 ml of blood.

9. Section 47A(3) provides that, in the case of a category 3 offence, which these offences were, a second offence is an offence committed within five years of the first offence. The appellant’s prior offence was committed on 15 November 2004. This offending occurred on 3 June 2010, over five years after the prior offending had occurred. Accordingly, the 3 June 2010 offending is not a second offence. The Magistrate was in error in treating the 3 June 2010 offending as a second offence.

10. The appeal must be allowed.

11. I set aside the penalty imposed by the learned Magistrate.  I propose to resentence the appellant, rather than remit the matter to the Magistrates Court.

12. The fine for the offending, pursuant to s 47B(1) of the Act, for a first offence, is not less than $700 and not more than $1200. The licence disqualification period prescribed by s 47B(3) of the Act is for such a period, being not less than 12 months, as the Court thinks fit.

13. I take into account that there were no aggravating features to the driving.  The appellant pleaded guilty at the first opportunity.  Before me he has readily admitted his offending.  The ground of appeal was that the Magistrate had made an error in proceeding on the basis that his offence was a second offence.

14. I have had regard to the fact that the appellant has one previous offence of driving with an excessive amount of alcohol in his blood, although the previous offence was outside the five-year period, and is not to be dealt with as a second offence.  Nevertheless, it is a factor to which I am entitled to take into account in respect of considering the applicable minimum penalty.

15. In my view, the appropriate licence disqualification period is 15 months.  As at 4 August 2010, the appellant had served a licence disqualification of two months.  I therefore reduce the 15 months’ disqualification to 13 months.  Since 4 August 2010 the appellant has continued to serve the disqualification imposed by the Magistrate.  I therefore impose a fine of $950 and disqualify the appellant from holding or obtaining a driver’s licence for 13 months, effective from 4 August 2010.  I also order that the impounding fees and other fees and levies ordered by the Magistrate be paid by the appellant.