Ion Constantine Pascu v SA Police No. SCGRG 96/1546 Judgment No. 5741 Number of Pages 6 Traffic Law

[1996] SASC 5741

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Traffic law - driving with prescribed concentration of alcohol while under suspension - the appellant drove his motor scooter into a roundabout in broad daylight - he had been drinking all day and had a blood alcohol concentration of .234% - history of prior offending - held that neither a sentence of imprisonment for seven days nor the refusal of the Magistrate to suspend it gave rise to a penalty which was manifestly excessive - where, as was the case here, the maximum penalty was six months imprisonment, it was wrong to talk of a "tariff" expressed in terms of days of imprisonment - the sentence should be scaled against the statutory maximum - there would be some cases which would justify close to the maximum and others a period of months imprisonment within it - to suggest that there was a tariff for an offence of this kind would be to encourage sentencing courts to work to that rather than to scale the sentence against the maximum prescribed in the legislation - observations as to the significance for sentencing purposes of the fact that the offender had suffered serious injuries in the course of committing the offence. Police v Lindfield Bollen J, 5 April 1995, unreported, judgment No 5052; Police v Bastow Full Court, 8 May 1996, unreported, judgment No 5595; Coombe v Douris
(1987) 47 SASR 324; Barci and Anor (1994) 76 A Crim R 103, considered.

HRNG ADELAIDE, 6 August 1996 #DATE 6:8:1996 #ADD 17:9:1996

Counsel for appellant:     Mr N Vadasz

Solicitors for appellant:    Nicholas Vadasz

Counsel for respondent:     Mr M Jacobs

Solicitors for respondent: Crown Solicitor (SA)

ORDER
Appeal dismissed.

JUDGE1 PERRY J This is an appeal against a sentence in respect of certain traffic offences. The appellant was charged in the Magistrates Court sitting at Adelaide on a complaint which alleged three counts, all relating to the same passage of driving, which occurred on 15 October 1995. The first count alleged that the appellant on that day at Frewville, drove a motor vehicle in Conyngham Street while there was present in his blood the prescribed concentration of alcohol, namely a concentration of .234 g in 100 millilitres of blood. The second count alleged that on the same occasion, he drove whilst disqualified from holding or obtaining a licence and the third count, that he drove without due care.

2. He pleaded guilty to all three counts and put submissions through counsel. It appears that the main concern of counsel was to avoid a custodial term of imprisonment. The police officer who was conducting the prosecution was noted by the learned sentencing magistrate to have indicated:
    "That his view would be that in respect of the question of
    suspension of a sentence in effect of a driver under
    disqualification, that would be a matter for the court and he
    would not put any submission on that topic, and would not
    oppose a submission that the sentence be suspended."

3. Notwithstanding that concession, the learned special magistrate imposed a penalty on the charge of driving whilst disqualified, namely a sentence of seven days imprisonment, which he declined to suspend. On the charge of driving with a prescribed concentration of alcohol, the learned sentencing magistrate imposed a fine of $1,200 and disqualified the appellant for a period of three years. On the third count, that is driving without due care, he convicted the appellant without penalty.

4. In his notice of appeal, the appellant advances two grounds, namely that the learned sentencing magistrate erred in refusing to suspend the sentence and that in all the circumstances it was manifestly excessive.

5. According to the affidavit of the police prosecutor, on the day in question at about 6.10 pm, which I assume was still broad daylight, the appellant was riding his motorcycle north on Conyngham Street, and drove straight into a raised roundabout. Apparently he suffered a fractured hip and was admitted to Royal Adelaide Hospital. A blood sample was taken at the hospital which on analysis was found to contain the level of blood alcohol to which I have already referred.

6. When the appellant was interviewed about two months later, he stated that from about 5.00 am on the day in question he had been drinking beer and wine and that this continued until well into the afternoon. He was unable to recall how many drinks he had consumed. He said that he had also taken some Valium and smoked two marijuana cigarettes. He had no recollection of the circumstances of the accident, and could offer no explanation as to how he came to drive into the roundabout, or for that matter, how he came to be driving whilst disqualified.

7. He was aged 42 years at the time. He had a history of prior offending. In particular, it appears from the record which was before the learned sentencing magistrate that he was convicted of a number of offences in 1992. Those offences included threatening life, driving in a reckless or dangerous manner and other driving offences.

8. On 6 September 1994 in the Magistrates Court sitting at Adelaide, he was convicted and sentenced on charges of driving with excess blood alcohol, driving an unregistered vehicle and driving without due care. It was on the conviction for driving with excess blood alcohol recorded on that day that his licence was disqualified for a period of 15 months. It was that disqualification on the day now in question, as the disqualification still had two or three months to run.

9. In January 1995, he was charged but no conviction was registered on offences of larceny and giving a false name and address. In March 1995 in the Port Adelaide Magistrates Court, he was convicted of various traffic offences, including driving an unregistered vehicle and driving without a licence. The offending that gave rise to that conviction apparently occurred in May 1994 before the imposition of the licence disqualification relevant to the present offending.

10. In his short ex tempore remarks made when sentencing the appellant the learned sentencing magistrate said:
    "In respect of the drive disqualified I have noted the
    submissions that have been put. I note the circumstances in
    which the offending occurred. I cannot agree that there is
    basis for suspension of the sentence and I have concluded that
    imprisonment is the appropriate penalty. Nevertheless, given
    the circumstances, what I propose to do is to reduce the
    period of imprisonment significantly to give recognition of
    the points Mr Vadasz has put."

11. He then went on to impose the sentence of imprisonment now under appeal.

12. Mr Vadasz first challenged the sentence of seven days imprisonment and contended that it was manifestly excessive. He suggested that it was out of line with what he described as a "tariff" for this offending.

13. With respect to him I find that submission surprising. Having regard to the terms of s91 of the Motor Vehicles Act 1959 subs(5), this being a first offence, the appellant was liable to a term of imprisonment defined as "division seven imprisonment" which I have been informed is imprisonment for up to six months. This must mean that there are some cases which will deserve six months imprisonment, and I would have thought many cases which will deserve a term of some months imprisonment short of that. It seems to me that seven days is almost a nominal term for this offence.

14. Mr Vadasz referred to the judgment of Bollen J in Police v Lindfield (5 April 1995, unreported, judgment No 5052). In that case His Honour substituted a period of five days imprisonment for a sentence of 21 days which had been imposed in the Magistrates Court. I do not pause to go into the circumstances of that case which were very different from that now in question. I do not accept the suggestion that in fixing a sentence of five days with respect to that particular matter His Honour was intending to set any sort of tariff. I note in passing that the counsel for the appellant, which was SA Police, did not offer any submission against the view that the penalty should have been reduced in that case to five days.

15. There was consideration in the Full Court in the case of Police v Bastow and Ors, (8 May 1996, unreported, judgment No 5595) of the penalties which were imposed under s91. The Full Court held in that case that the well known dictum of King CJ as he then was in Coombe v Douris, (1987) 47 SASR 324, which I do not pause to repeat, remains an accurate statement of the relevant principles. The Full Court observed in that case that penalty standards for s91 offences "have been generally eroded".

16. That comment was made after the observation that a period of seven days imprisonment imposed upon one of the offenders concerned in that matter appeared to the court to have been much too low.

17. Again I do not pause to go into the detail of the circumstances of the cases then before the court, as it seems to me that a nice comparison of those circumstances is likely to be misleading and unhelpful.

18. As I see it, I doubt that there is any sort of tariff. I take the view that when the legislature has laid down that the maximum term is six months, it means what it says, and that penalties should be scaled appropriately according to the seriousness of the offence up to a maximum of six months. To suggest that there is some sort of tariff, expressed in days rather than months, tends to encourage sentencing courts to work to the suggested tariff rather than to scale the penalty against the statutory maximum.

19. In this case, in my opinion, it simply could not be said, notwithstanding the various points which were put on behalf of the appellant, that seven days imprisonment was manifestly excessive.

20. I turn to deal with the contention of the appellant that the learned special magistrate erred in failing to suspend the sentence now under review.

21. The principal matter urged upon both the special magistrate and upon me was that the serious injuries suffered by the appellant and their consequences in terms of residual disability amounted to "good reason" within the meaning of those words in s38 of the Criminal Law (Sentencing) Act 1988 to suspend the sentence of imprisonment.

22. It is true that the severe injuries suffered by the appellant were a matter to be taken into account in that regard . Mr Vadasz has referred to Barci and Anor (1994) 76 A Crim R 103 and in particular the judgment of the Court of Criminal Appeal of Victoria in that case at 110 and 111. The court there expressed the view that the injuries suffered by the defendant in that case ought properly to be taken into account in determining the sentence for armed robbery.

23. The appellant explains in his affidavit that he spent 10 weeks in hospital and suffered multiple injuries, including a fractured right acetabulum; that he was in traction for six weeks and underwent a major operation to his right hip; that since then he has been in considerable pain and he has been informed that although the injury will stabilise, the pain will never go away. He walks with a limp and this is likely to be permanent. His work history has been confined to work of a physical nature which it now seems unlikely that he will be able to undertake.

24. He sets out in affidavit that he had purchased the motor scooter which he was riding at the time shortly before this accident, and that that was written off causing a monetary loss of the order of $1,500. He explains that the immediate background to the offence was an argument with his girlfriend, that the upshot of that was that he took some Valium and smoked some marijuana and then set off to see her, she having left him earlier in the afternoon following an argument.

25. Of course one must have some sympathy for the serious injuries suffered by the appellant and for the matters referred to in his affidavit. However, it seems to me that in mounting the motor scooter and riding off that day, he was demonstrating a contumelious disregard for his obligations imposed upon him by reason of the order of disqualification. He was well aware of that order and of the significance of it, and has offered absolutely no excuse as to why he rode the motor scooter on that day. That must be considered against the history of his driving offences to which I have referred, which includes the fact that as recently as March of 1995 he was before the court on other driving offences.

26. In my opinion, the circumstances, although unfortunate for the appellant, did not amount to a good reason for suspension of the sentence of imprisonment. More accurately perhaps I should say that in failing to exercise his discretion to suspend, it has not been demonstrated that the learned special magistrate fell into error. It was clearly within his discretion to suspend or not, and I am unpersuaded that in exercising the discretion in the manner in which he did he erred.

27. The appeal must be dismissed.

28. There will be no order for costs.