Kent v Police No. Scgrg-98-1076 Judgment No. S6850

[1998] SASC 6850

KENT V POLICE

[1998[ SASC 6850
Magistrates Appeal

Perry J  (Ex tempore)

1 The appellant appeals against the sentence imposed upon him following his plea of guilty in the Magistrates Court sitting at Christies Beach to charges of driving under the influence, using offensive language in a public place and refusing to submit to a breathanalysis all of which offences having occurred on 11 October 1997 in the Woodcroft Tavern car park at Morphett Vale.  Upon the appellant's plea of guilty to those charges, a separate charge of hindering the police in the execution of their duty was withdrawn, as was a charge of driving with a prescribed concentration of alcohol. 
2 The appellant was represented by counsel, who made submissions on his behalf in the court below.  Following those submissions the learned sentencing magistrate imposed a penalty of a fine of $1,500 together with a licence disqualification of four years and six months on the driving under the influence count. 
3 He was convicted without penalty on the charge of using offensive language.  On the charge of refusing to submit to a breathanalysis he was fined a further $1,500 and a similar licence suspension of four years and six months was imposed on that count as well, but commencing from the same date, that is, forthwith, which it means effectively that there was one disqualification for that period. 
4 The appellant appeals against those sentences on the ground that they were manifestly excessive.  At the outset of the appeal, Mr Kane, who appeared for the appellant, made it plain that the target of the appeal was the second fine of $1,500. 
5 The penalties to which I have referred were as recorded by endorsement on the complaint, those endorsements being signed by the learned sentencing magistrate.  The police prosecutor, Mr Hawkins and Mr Kane, who also appeared in the court below, have sworn affidavits raising a doubt as to whether or not the endorsements on the court file accurately reflect what the magistrate said in open court at the time he imposed the penalties.  There was some reason to doubt that he repeated the four years six month licence suspension on sentencing with respect to each count, but that is not challenged now and it is unnecessary to refer further to that.  But neither the police prosecutor nor Mr Kane have any recollection that a second fine of $1,500 was imposed on the count of refusing to submit to a breathanalysis. 
6 It is unfortunate that the both prosecuting police officer and defence counsel were left with an impression which does not accord with the endorsements subsequently made on the complaint.  It is at the very least suggestive of a lack of clarity on the part of the learned sentencing magistrate in pronouncing the penalties which he was imposing.
7 Be that as it may, the appeal has been argued on the basis that the penalties are those which are set out in the endorsements on the complaint. 
8 When the matter was called on I invited Mr Hinton, who appeared for the Crown, to advance his submissions in opposition to the appeal first.  I did so as it appeared to me that standing back from the matter and notwithstanding the fact that in each case the penalty of $1,500 was the statutory minimum, there were substantial arguments in favour of the view that the combined effect of the two penalties was excessive. 
9 Before coming to that I will pause to refer to the facts as they were put by the police prosecutor to the court below.
10 It appears that in the early hours of the morning in question police were called to the vicinity of the Woodcroft Tavern.  When they arrived the appellant was seated in a Toyota van which he started up and began to drive away.  He was stopped, following which he got out of the vehicle and lent on the door frame for support.  His speech was slurred and his eyes were bloodshot.  When asked to move away from the vehicle he appeared unsteady on his feet and constantly swaying about five inches to either side of an imaginary vertical straight line.  He smelled moderately of liquor. 
11 As the police officers attempted to speak to him, he became very aggravated and aggressive, snatching his licence away from the police and initially refusing to supply any personal details.  He described the police officers as 'fucking cunts' and used other abusive language towards them.
12 When asked a little later to submit to breathanalysis he failed on four successive occasions to supply an adequate sample.  He was then taken to Noarlunga Hospital for the purposes of the taking of a blood sample, but once there he refused several attempts by a doctor to take a specimen of his blood. 
13 The appellant is aged 49 years and has a depressingly long record of prior convictions dating back to his first appearance in the Children’s Court in 1962 when he was released on a bond for larceny. 
14 Subsequent convictions relate in the main to liquor and vehicle offences interspersed with convictions for disorderly behaviour, resist arrest and other street offences. 
15 During the course of his remarks on penalty, the learned sentencing magistrate observed:-
"Mr Kent, looking at your offending history, this is the fifth time that you have faced drink driving charges.
I am not an expert in the field of problems associated with drinking, but if I were you, I would be seeking some help or some assessment to see if you have a problem with drinking.
My job is to protect you and the community and it is clear to me that you shouldn't be on the road.  Parliament has told me that as a minimum, it should be three years but in my view, that it is not enough."
He then went on to impose the penalties to which I have referred. 
16 The case raises the question of the appropriate course to be followed in a court of summary jurisdiction, when the defendant having refused to submit to a breath analysis subsequently pleads guilty to a substantive liquor related driving offence.  In that context, Mr Hinton quite properly referred the court to dicta of King AJ, as he then was, in the case of Measey , where the appellant was sentenced on charges of driving without due care and failing to submit to a breath analysis. 
17 In the course of his reasons for judgment in that case, King AJ said :
"It seems to me, however, that the severe penalties provided in s.47E (of the Road Traffic Act 1961) are really provided in order to ensure that offenders do not escape the proper penalty for drink driving by refusing to take the breath test. It seems to me that the minimum penalties provided in that section are not really appropriate where the offender has been convicted of the drink driving offence and has suffered the punishment due for that offence.
I regard the fact that that has occurred on this occasion as good reason, pursuant to s17 of the Criminal Law (Sentencing) Act, for reducing the penalty on count 3 below the minimum."
18 Section 17 of the Criminal Law Sentencing Act 1988 provides:
19 "Where a special Act fixes a minimum penalty in respect of an offence and the court, having regard to -
20 (a) the character, antecedents, age or physical or mental condition of the defendant; or
21 (b) the fact that the offence was trifling; or
22 (c) any other extenuating circumstances,
23 is of the opinion that good reason exists for reducing the penalty below the minimum, the court may so reduce the penalty."
No challenge has been made to the characterisation of the Road Traffic Act 1961 as a special Act within the meaning of that section.
24 In considering whether or not it might be proper to reduce the penalty for the refusal to submit to a breath analysis below the statutory minimum of $1 500, the question arises as to what, if any, of the criteria set out in s17 is of potential application. Here I do not think that the matters referred to in sub-para.(a) and (b) are applicable, which leaves the question, whether or not there were within the meaning of sub-s.(c) "other extenuating circumstances".
25 It is clear from the decision of my brother Mullighan J in Caldow and Anor v Hemming  that he accepted an argument in that case that events which occurred subsequent to the commission of the offence may amount to extenuating circumstances.  He refers to examples given by Mrs Branson, as she then was, cited in the judgment of Matheson J in Beaven v Rankine .  Without repeating his citation, I am prepared to accept that extenuating circumstances may arise in such circumstances. 
26 The question is, what might fairly be said to be extenuating circumstances in this case? The answer is, that in so far as the meaning of "extenuating circumstances" are circumstances which "lessen the guilt" , the fact that the appellant pleaded guilty to the charge of driving under the influence and was then fined a substantial amount which including court fees and costs, totalling in all $1 638, amounts in my opinion to extenuating circumstances which trigger the applicability of the discretion identified in s17.
27 I think it is important to approach matters of this kind on the basis which does not discourage people from pleading guilty to the substantive liquor related offence, subsequent to a failure to submit to breath analysis.  It seems to me that it is consistent with the proper and effective administration of justice that notwithstanding a failure to submit to a breath analysis, a person who subsequently then admits to the substantive liquor related offence, evidence of which might have been afforded by the outcome of the breath analysis, should receive every encouragement to do so. 
28 Here, it is by no means obvious to me that on the facts as related by the police prosecutor, there was a strong case if the matter had proceeded as a contested hearing on the charge of driving under the influence. 
29 That charge is notoriously difficult to prove on matters of mere observation by arresting police officers.  Notwithstanding the police officers’ description of the appellant when first apprehended by them and his conduct immediately afterwards, it is by no means obvious to me that if the prosecution had been put to the test it would have succeeded in securing a conviction on that count. 
30 In all the circumstances, in my opinion the learned sentencing magistrate erred in failing to recognise the applicability of s17 and the desirability in the circumstances of this particular case of applying the section so as to avoid the double penalty which in effect the appellant suffered notwithstanding his plea to the driving under the influence count.
31 I think it proper to allow the appeal for the purpose of reducing the fine imposed upon the charge of refusing to submit to a breath analysis to $100.  The appeal will be allowed for that purpose but all other orders, including the licence disqualification, as made by the learned sentencing magistrate, are to stand. 
32 There is no order as to costs.