Kardel v Police - [2009] SASC 214

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KARDEL v POLICE
[2009] SASC 214
Judgment of The Honourable Justice Anderson
28 July 2009
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - TESTING AND ANALYSIS PROCEDURE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
SENTENCING - TRIFLING OFFENCES
Appellant disqualified from driving for 12 months - failure to comply with reasonable direction of police officer to provide further sample for breath analysis - whether mistaken belief as to request made by police officer was reasonable - whether offence was trifling.
Held: Belief of appellant not reasonable - offence not trifling

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - NOTICES OF APPEAL - TIME FOR APPEAL AND EXTENSION THEREOF
Appeal lodged out of time - whether extension of time should be granted - whether appeal without merit - whether miscarriage of justice.
Held: Appeal without merit - no miscarriage of justice - no extension of time granted.
Road Traffic Act 1961 (SA) s 45, s 47B, s 47E(3), s 47E(6) and s 47IAB(2); Criminal Law (Sentencing) Act 1988 (SA) s 17, s 18A and s 20, referred to.
Police v Ludlow [2008] SASC 43; Siviour-Ashman v Police (2002) SASR 23, discussed.
Bransdon v Police Unreported, Bleby J, 4 August 1998, Judgment No S6785; Przbytniac v Police (1998) 100 A Crim R 196, considered.

KARDEL v POLICE
[2009] SASC 214
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

Mr Kardel was initially charged with four offences, but on his entering a plea of guilty to two counts the other two were withdrawn. The counts on which he pleaded guilty were:
Count 1 – drove a vehicle on a road without due care, contrary to s 45 of the Road Traffic Act 1961 (“the Act”).
Count 2 – failed to comply with all reasonable directions of a member of the police force in relation to the requirements to submit to a breath analysis, contrary to s 47E(3) of the Act.
The penalty for a first offence is a fine of not less than $700 and not more than $1,200.
Section 47E(6) of the Act provides, that for a conviction under s 47E(3), there is a mandatory disqualification of licence for not less than 12 months.
The magistrate imposed a single penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 and he fined the appellant $1,000. The magistrate also disqualified the appellant from driving for 11 months and 27 days because of 3 days disqualification already served. That licence disqualification commenced on 1 June 2009.
The grounds of appeal
The appellant appeals against the order for licence disqualification. He was represented on his guilty plea by counsel. The appellant gave evidence to support an application that the offence be characterised as trifling. The magistrate refused this application.
The appeal is out of time. The sentence was imposed by the magistrate on 4 February 2009 but the notice of appeal was not filed until 12 May 2009. The respondent opposes the application to extend time on the basis that there is no miscarriage of justice. The respondent argues that the appeal is without merit, that the magistrate imposed the minimum licence disqualification and therefore that there are no grounds for arguing that there was any error by the magistrate. The notice of appeal states that the ground for an extension of time is “ill health”. No supporting information is given to substantiate the ill health of the appellant as a reason for the lateness of the lodging of the appeal
Background
On 23 July 2007 the appellant was driving his motor vehicle at Happy Valley. His vehicle came into collision with the rear of another vehicle which was stationary at the time waiting to turn right. Following the impact between the appellant’s vehicle and the stationary vehicle, the stationary vehicle then collided with an oncoming vehicle when it was forced into the path of the oncoming vehicle.
When police attended at the scene of the accident, Mr Kardel was requested to submit to an alcotest. He did that and the result was positive. The police officers then required him to submit to a breath analysis, and for that purpose he was taken to a police station. There, he was required to provide two samples of his breath for the purpose of the analysis. He provided two samples but was told that the first sample was insufficient to enable the analysis to proceed. The officer requested a further sample and Mr Kardel failed to comply with that direction.
When he gave evidence before the magistrate Mr Kardel said that he mistakenly believed that he had complied with the officer’s request. It was submitted on his behalf that his belief at the time was reasonable. The magistrate rejected the argument that there was any reasonable basis for Mr Kardel’s belief.
The magistrate said at [9]:
[9]It is apparent from the evidence of Mr Kardel that he understood the direction in question. It is apparent that he made a deliberate decision not to comply with the direction. His explanation is that his decision not to comply was made based on a misunderstanding on his part. He said that his misunderstanding arose from beliefs which he held at the time but which he now acknowledges were mistaken.
The magistrate went on to say at [10]:
[10]He states that his decision not to comply was made in circumstances in which he perceived that a stand-off, of sorts, had arisen between him and the breathalyser operator and that he was not willing to comply with the direction until an explanation was forthcoming.
The magistrate then proceeded to examine whether, in accordance with the principles, the offence was trifling. He concluded that it was not a trifling offence.
The relevant sections of the Road Traffic Act
1. Section 47E(3)
This section prescribes a penalty for a first offence of a fine of not less than $700 and not more than $1,200.
2. Section 47E(6)
In addition, s 47E(6) provides:
(6)Where a court convicts a person of an offence against subsection (3), the following provisions apply:
(a) the court must order that the person be disqualified from holding or obtaining a driver's licence—
(i)in the case of a first offence—for such period, being not less than twelve months, as the court thinks fit; or
…
3. Section 47E(6)(b)
This subsection provides that:
(b)the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case the court may order a period of disqualification that is less than the prescribed minimum period but not less than one month;
…
The appellant’s submissions
The appellant, representing himself in this appeal, made three basic submissions. He submitted that the magistrate had not taken into account the remarks of another magistrate who had reviewed his immediate licence disqualification at an earlier point in time. His second argument related to the circumstances of the offence and why it was trifling, and his third argument related to the hardship which the period of licence disqualification would mean in relation to his employment. He was employed as a private investigator and needed his vehicle to earn his income.
The appellant was automatically disqualified from driving by operation of law when the offence was committed. At the time he was given a notice of immediate licence disqualification. Another magistrate, on review of this disqualification, said, “It seems to me there is a reasonable argument there was no reasonable request” and made an order that the appellant was not disqualified nor his licence suspended. This order was made pursuant to s 47IAB(2) of the Act.
In my view, this is of no relevance to the present appeal from the magistrate who determined that the offence was not trifling. All that the first magistrate had done was to comment on the reasonable prospects of a defence, but as Ms Shanks for the respondent pointed out, all of that became irrelevant in any event when the appellant pleaded guilty. I agree with that submission.
In relation to the decision by the magistrate to refuse to declare the offence trifling, the appellant argued the case afresh. I have already set out those passages from the magistrate’s reasons which I consider relevant in relation to his findings as to Mr Kardel’s decision not to comply with the direction of the police officer. It cannot be shown that the magistrate has made any error in his findings of fact in this regard.
Similarly, the magistrate has not erred, in my view, in his summation of the relevant law. His Honour refers to the principles set out by Doyle CJ in Siviour-Ashman v Police (2003) 85 SASR 23 at [25]. Those principles were summarised more recently by White J in Police v Ludlow [2008] SASC 43. Although White J was dealing with a trifling offence pursuant to s 47B of the Road Traffic Act, the magistrate in this matter held, correctly in my view, that those principles are also relevant to the provision of s 47E(6)(b) of the Road Traffic Act.
The magistrate said at [12]:
[12]I apply those principles to the extent that they are relevant to the provisions of s 47E(6)(b) of the Road Traffic Act. As required, I focus on Mr Kardel’s conduct which was his failure to comply with the reasonable direction. I bear in mind, as I’m required to, the underlying legislative purpose of s 47E. It is implicit in Mr Kardel’s plea that there was no good reason for him failing to comply with the direction.
His Honour then said at [13]:
[13]It is clear from his evidence that his decision to fail to comply with the direction was a deliberate decision in circumstances where he perceived that there was a stand-off with the breathalyser operator. His decision was based on mistaken beliefs for which there was no reasonable basis. The mistaken belief that circumstances existed justifying the conduct engaged in does not, in my view, make the offence trifling. There may be some unusual circumstances about the commission of the offence but it does not follow, in my view, that the offence was trifling in the relevant sense, meaning that it was of slight importance, insignificant or of little moment.
I agree with those remarks of the magistrate.
It is my view that it has not been demonstrated that the magistrate has erred in any respect, either in his findings of fact in relation to this matter or his application of the correct law to those facts. The magistrate has found that the appellant made a deliberate decision to fail to comply with the direction of the police officer. It is hard to see in those circumstances how such a deliberate act could then be the basis of having the offence declared trifling. It is clearly not the intention of the legislation.
Reasonableness of mistaken belief
The appellant argued that his offending was not typical because it was his mistaken belief which was the cause of his failure to comply with the request to provide a further breath sample. Even if that were the case, it would not follow that the offence was trifling: see Bransdon v Police, Bleby J, 4 August 1998, Judgment No S6785. That is because the state of mind of an offender is of little importance in a case such as this.
In Siviour-Ashman at [43], Doyle CJ said:
[43]… To my mind, the offending conduct cannot be regarded as a trifling offence simply because of the appellant’s state of mind and belief, because of the very limited significance of advertence and state of mind when making a qualitative assessment of an offence like the one in question.
Hardship and extenuating circumstances
Finally, Mr Kardel argued that account should be taken of the hardship caused by the licence disqualification in considering whether the offence should be declared trifling. The intention of Parliament in enacting s 47E(6) is to provide only one means whereby the licence disqualification can be reduced below the minimum period, and that is where the court is satisfied by evidence on oath that the offence is trifling.
This is not a case where the minimum penalty prescribed in s 47E(6) can be reduced pursuant to s 17 of the Criminal Law (Sentencing) Act. Section 17 operates as a general provision to allow for the reduction of minimum sentences on the basis that the offences are trifling or because there are extenuating circumstances.
Section 17 provides:
17—Reduction of minimum penalty
Where a special Act fixes a minimum penalty in respect of an offence and the court, having regard to—
(a)the character, antecedents, age or physical or mental condition of the defendant; or
(b)the fact that the offence was trifling; or
(c)any other extenuating circumstances,
is of the opinion that good reason exists for reducing the penalty below the minimum, the court may so reduce the penalty.
Section 17 operates in conjunction with s 20 of that Act, which provides:
20—This Division does not affect mandatory sentences
Nothing in this Division—
(a)affects the sentence to be imposed by a court for murder or treason; or
(b)derogates from a provision of a special Act that expressly prohibits the reduction, mitigation or substitution of penalties or sentences.
In this case s 20 does not allow s 17 to override s 47E(6)(b) of the Road Traffic Act, which prevents the reduction of the mandatory sentence of licence disqualification for 12 months for a first offence: see Przybytniac v Police (1998) 100 A Crim R 196 and the decisions referred to in that matter.
Conclusion
Because I have concluded that there is no merit in any of the matters which the appellant seeks to raise on this appeal, I agree with the respondent that it is not appropriate in those circumstances to grant an extension of time. The licence disqualification imposed was the minimum and therefore cannot be manifestly excessive. Likewise the fine is not manifestly excessive. There is no basis for a declaration that this is a trifling offence and therefore, on the merits, even if an extension of time were granted, the appeal would be dismissed.