Griffiths v Police No. Scgrg-98-1444 Judgment No. S7012

GRIFFITHS v POLICE
[1998] SASC 7012

Magistrates Appeal: Criminal

MULLIGHAN J. This is an appeal against the total period of disqualification of licence, from holding or obtaining a licence to drive a motor vehicle.
The sole ground of the appeal is that the period of disqualification is manifestly excessive. The appellant pleaded guilty to one charge of driving a motor vehicle, whilst there was present in his blood the prescribed concentration of alcohol as defined in s.47A of the Road Traffic Act 1961, contrary to s.47B of that Act, and to one charge of driving a motor vehicle at a speed which was dangerous to the public, contrary to s.46 of the Act.
His blood alcohol level was .201 grams of alcohol in 100 millilitres of blood. The offences occurred on 4 July 1998, and the appellant appeared before a learned Magistrate at the Magistrates Court at Elizabeth on 30 September 1998, which was his first appearance before a Court.
It follows that he pleaded guilty to these charges on the first occasion. On the first charge, the appellant was fined $900, with fees and levy and costs amounting to $146. He was disqualified from holding or obtaining a licence to drive a motor vehicle for a period of two years. On the second charge, he was fined $350, with a levy of $28, and was disqualified from holding or obtaining a licence to drive a motor vehicle for a further period of 7 months, cumulative upon the period of disqualification for two years.
Pursuant to s.47B(3)(a)(i)9B) of the Act, the learned Magistrate was obliged to disqualify the appellant from holding or obtaining a licence to drive a motor vehicle for a period of not less than 12 months. On the charge of driving at a speed dangerous to the public, he was obliged to disqualify him from holding or obtaining such a licence for a period of not less than 6 months.
The factual basis of the orders made by the learned Magistrate are that at about 10.05 pm on 4 July 1998, which was a Saturday, the appellant was driving a motor vehicle along Milne Road at Para Vista. The attention of police was drawn to his vehicle because he executed a right-hand turn into Nelson Road without giving any indication. A little later he turned back into Milne Road giving indication. The police followed and timed the speed of the vehicle at 105 kilometres per hour along Milne Road. At this location, the speed limit was 60 kilometres an hour. At one stage, the appellant's vehicle moved from the left-hand side of the road to the right-hand side to miss a parked motor vehicle. The police activated lights and a siren on their vehicle and the appellant turned left into Robert Court and then stopped. He was taken to the Holden Hill Police Station where breath analysis revealed the blood alcohol level which has been mentioned.
At the time of the driving, Milne Road was constructed of bitumen which was in poor condition, and there was adequate street lighting. The gradient on Milne Road at the relevant location from Nelson Road to Robert Court is steep and there is a very tight right-hand bend halfway along the road. The appellant drove past eight side streets whilst he was driving at a speed in excess of 100 kilometres an hour.
At the time, the traffic conditions were light, the road was dry and the weather fine. In fact, I am informed that at the time of the driving at the excessive speed, the appellant's vehicle and the police vehicle were the only two vehicles on the road. The appellant refused to answer some questions but generally was co-operative with the police. The breath analysis operator described him as being moderately affected by alcohol.
There are compelling personal circumstances of the appellant which excite sympathy and give rise to considerations of leniency. He is aged 28 years. He has no previous convictions. Testimony placed before the learned Magistrate reveals that he is a man of good character. He is a tradesman/carpenter and conducts his own business doing first-fixings on building sites. He commenced that business as a young man and has expanded it over the years.
He is substantially in debt with respect to the purchase of his home and moneys borrowed for his business but his business is sufficiently viable to enable him to meet his commitments. He employs an apprentice. The appellant needs to use a motor vehicle in the course of his business. However, at present, he is able to arrange for the apprentice to drive him around except for about eight weeks a year when the apprentice is at trade school and potentially for another six weeks a year when the apprentice takes annual leave or is possibly on sick leave.
The offending of the appellant causes not unfamiliar self-inflicted detriments. Not only is he unable to drive himself around but it is likely that he will have to incur expense when the apprentice is unavailable to assist him in that way or, at least, that is a possibility.
It was submitted, and I accept, that because of the inability to drive, he is unable to continue to expand his business much beyond its present state. So, there is a potentially additional financial detriment for that reason.
There is, of course, a limit to what the Court may have regard to self-imposed detriments by reason of licence disqualification. Nevertheless, I think they are matters that the learned Magistrate may take into account when determining what is a proper period of licence disqualification in all the circumstances. The appellant is duly contrite and remorseful for his behaviour, which I accept is completely out of character. It occurred because he went out with a girlfriend to enjoy a quiet and relatively abstemious meal, so far as alcohol is concerned, but he had a substantial win on a poker machine, which was an occasion for celebration. Whilst that matter does not afford any excuse for his offending, the point is made when he went out, he had no intention of drinking to excess and his driving occurred on the spur of the moment for the reasons which I have mentioned.
The learned Magistrate said very little when he imposed penalty. He said that he had taken into account all of the matters put by his counsel which are substantially the matters which I have mentioned thus far. He went on to say that the combination of high speed and high blood alcohol concentration is of great concern, as is the fact that the appellant was unaware of the speed at which he was travelling. The learned Magistrate took the view that that matter made the speed all the more potentially dangerous as the appellant would have been unable to calculate braking distances in advance should anything untoward have happened.
The period of time during which the appellant drove at the high speed was probably not lengthy, although it covered the distance necessary to pass some eight side streets. I accept that it was not a long distance and that the road on which the speeding occurred was downhill.
It is significant that once the police activated the lights and siren, the appellant stopped, and thereafter, in the main, cooperated entirely with them.
This is a first offence committed by a hitherto responsible citizen on an occasion following spontaneous celebration. His offending is nonetheless a serious breach of the law but it must be seen in its true context.
He has faced up to his offending appropriately, in time as well as by way of responsibility, and his good character and background are matters to be brought to account in his favour.
The question is whether the learned Magistrate was in error in deciding that the total period of licence disqualification should be 2 years and 7 months.
The minimum period which had to be imposed pursuant to the two sections was a period of 18 months given the blood alcohol level of the appellant and the fact of it being a first offence for the purposes of s46.
The learned Magistrate said that he had taken into account all of the matters put by counsel but the question is whether he did so adequately. I think the imposition of the minimum period of disqualification would not have been justified in the circumstances. Given the speed at which the appellant drove the vehicle, and his blood alcohol level, something more than the minimum was required.
However, having considered all of the matters that are relevant, I have reached the conclusion that the total period of disqualification of 2 years and 7 months was, in the circumstances, manifestly excessive given the relevant personal circumstances of the appellant and the circumstances of the offences themselves.
Having reached that conclusion, the sentencing discretion must be exercised afresh. I agree with the learned Magistrate that a serious view had to be taken of this offending. The total period of licence disqualification of 2 years seems to me to be appropriate and should act as a sufficient general and personal deterrent. I allow the appeal and I vary the order made by the learned Magistrate by ordering that the two periods of licence disqualification, which I confirm, should be served concurrently and not cumulatively.
The respondent is to pay the appellant's costs which I fix at $150.

[1998] SASC 7012

2 December 1998