Jia v Police - [2015] SASC 140

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JIA v POLICE
[2015] SASC 140
Judgment of The Honourable Justice Vanstone
22 September 2015
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - OTHER OFFENCES
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN BLOOD - SENTENCE AND PENALTY
Police appeal against penalty for driving under the influence of liquor – whether penalty imposed was manifestly excessive – whether appellant might have persuaded Court that offence was trifling.
Held: appeal dismissed – penalty imposed was the minimum available – the offence could not have been regarded as trifling.
Road Traffic Act 1961 (SA) s 47(1)(a), s 47(3)(b), s 47IAA; Criminal Law (Sentencing Act 1988 (SA) s 10, referred to.
Siviour-Ashman v Police (2003) 85 SASR 23, applied.
Police v Head [2013] SASC 185; Police v Ludlow [2008] SASC 43; Campbell v Fuss (1991) 55 SASR 355, considered.

JIA v POLICE
[2015] SASC 140
Magistrates Appeal
Criminal

VANSTONE J: The appellant, Guangan Jia, pleaded guilty in the Magistrates Court to driving under the influence of liquor contrary to s 47(1)(a) of the Road Traffic Act 1961 (SA) (the RTA).
The Chief Magistrate imposed a fine of $1,100 and disqualified the appellant from holding or obtaining a driver’s licence for ten months and three weeks. Added to the period of disqualification served after police issued the appellant with notice of immediate licence disqualification, that amounted to disqualification for 12 months. Further, the appellant was required to pay court costs and an impounding fee.
The appellant was unrepresented before the Chief Magistrate and again in this Court. His grounds of appeal have plainly been drafted himself. In essence his complaint is that the Chief Magistrate failed to inform him of his rights, that the Court in fixing penalty did not have regard to his personal circumstances and that the licence disqualification period is too long. It might be that an assertion that the offence was trifling could be read into the grounds of appeal.
Background
The offence occurred on the evening of Saturday, 23 May 2015. The appellant had apparently been to a work function and anticipated that his wife would drive home. However, at about 11 o’clock the appellant determined to move his motor vehicle and, when he inadvertently drove onto the footpath and damaged his car – to the extent that it could not be further driven – he was detected by police. The offence occurred at Philip Street, Adelaide. The appellant was taken to the Hindley Street police station where a breath analysis gave a reading equating to a concentration of 0.18 grams per 100 millilitres of blood. Police then issued the appellant with an immediate licence disqualification under s 47IAA of the RTA.
The plea of guilty was entered on 2 July 2015 and the Chief Magistrate imposed penalty on the same day. I am satisfied by an affidavit of the police prosecutor that the appellant was warned of the likelihood that his licence suspension would continue and that he declined the opportunity he was offered to adjourn so that he might seek legal advice.
In support of his appeal the appellant argues that penalty was imposed without regard to certain matters set out in s 10 of the Criminal Law (Sentencing) Act 1988 (SA), namely, the circumstances of the offence, the prior good character of the appellant, the isolated nature of the offence and the appellant’s need to have his driver’s licence to assist in raising his young family and for his employment as a bus driver.
Consideration
I shall return to the matter of whether the appellant might have argued that the offence was trifling.
It is evident that, contrary to the appellant’s submission, the Chief Magistrate did take into account that the offence involved driving over only a short distance and that the appellant came to the Court as a man of good character. The fine imposed was the minimum that can be imposed for a first offence against s 47(1)(a) of the RTA. Similarly, the period of licence disqualification given was the minimum. Hence, the penalty was imposed at the lowest levels allowable.
The other issue is whether the period of disqualification might have been reduced if the appellant had established that the offence was trifling. There being no clear evidence before me as to precisely what passed between the bench and the appellant prior to the plea of guilty being taken, I am prepared to act on the assumption that the appellant was not told that he could have given evidence on oath in an effort to point to circumstances justifying a finding that the offence was “trifling” within the meaning of s 47(3)(b) of the RTA.
The difficulty standing in the way of any contention that the offence was trifling is found in the circumstances of the offending as described in a letter which the appellant wrote to the Court. In that letter he explained his family situation and also the circumstances of the offence. The appellant said that he had travelled into the city with his wife, who was to be the designated driver, as she did not drink. He then said:
We had parked in a paid parking area and as the night progressed my wife suggested that I attend at the parking premises and add further money to extend the time. However, when I arrived I made the decision to instead move the car some 100 metres away to a free parking spot. I believe that I was travelling at the required speed but as I was manoeuvring to pass the white car parking along Philip Street, I came too close to the kerb. I believe this was exacerbated by the narrowness of the street and my looking in the mirror and I veered too far to the right. This caused the front right tyre squeezed onto the pole and blew up which led to me mounting the kerb. (sic)
It is apparent from that description of the incident that there was no necessity for the appellant to be driving at all at that time, and that the manner of driving significantly aggravated the offence, in that the appellant plainly mounted the kerb and collided with a pole while on his incorrect side of the road. In addition, police who spoke to the appellant at the scene described him as “smelling of liquor” and “slurring his words”. It was said he was unable to walk without assistance to the police vehicle, positioned about 15 metres away.
The ordinary meaning of “trifling” is of little moment or insignificant. Whether an offence of this nature is trifling is to be determined by reference to the conduct constituting the offence and the circumstances in which it is committed. A typical example of this offence would not qualify; rather, it would be an unusual or exceptional case which might answer that description: Siviour-Ashman v Police (2003) 85 SASR 23 at 27.
In Police v Ludlow [2008] SASC 43 White J dealt with a police appeal in a case where a magistrate had found an offence of driving with the prescribed concentration of alcohol (a less serious offence) to be trifling. The respondent was apprehended after executing an unlawful U-turn in Grenfell Street, Adelaide at about 9.15 one weekday evening. He was planning to move his vehicle to his carpark at his place of work, with a view to then taking a taxi home. That trip would have been one of about 450 metres. He had unexpectedly been asked to dine with his employer. His blood alcohol level was 0.109 grams per 100 millilitres of blood. Allowing the appeal, White J found that the circumstances could not reasonably be characterised as trifling.
In Police v Head [2013] SASC 185 Kelly J upheld a police appeal against a finding that an offence of prescribed concentration of alcohol was trifling. There the alcohol level was 0.086 grams per 100 millilitres of blood. The respondent went to the farm of a neighbour near Crystal Book and they shared some drinks. At about 8.30 pm he went to drive home on some back roads, a distance of about 3.5 kilometres. Evidence showed that although his route involved fairly lonely dirt roads, it did require him to go through a number of intersections. Kelly J held that there was nothing uncommon or atypical about the circumstances in which the respondent found himself or the error of judgment he made.
In Campbell v Fuss (1991) 55 SASR 355 the appellant had made “a minor adjustment of the parking position of a vehicle adjacent to the kerb at a time and place where no danger was likely to or did arise”: at 358. Notwithstanding that he had a high level of alcohol in his blood (0.20 grams per 100 millilitres of blood) a judge found that such driving was not typical and was in that case trifling. In Siviour-Ashman Doyle CJ, speaking for the Full Court, observed that the high reading in Campbell v Fuss might have made the case “borderline”, but that there was a basis for the offence being seen as trifling.
In my view, the circumstances of this offending could not be seen to be trifling. Not only was the car to be driven at least 100 metres down a city street, but the appellant’s control of the car was plainly quite inadequate and a collision ensued. There was no pressing need for the appellant to be driving at all. His blood alcohol level was such that he must have felt affected. It accounts at least in part for the error of judgment he made. Given that there was no prospect of persuading the Chief Magistrate that the offence was trifling, any perceived failure to alert the appellant to his right to give evidence in support of such an argument came to nothing.
The appellant has presented a number of written character references to me. The various referees speak of his good character and of his contrition, as does he himself. It is unfortunate indeed that the appellant finds himself in this position.
Conclusion
Notwithstanding the arguments and materials placed before me by the appellant, the appeal must fail. As I have set out, the penalty imposed was the minimum available and any attempt to argue that the offence was trifling fell to be rejected.
The appeal is dismissed.