Kent v Police No. Scgrg-98-928 Judgment No. S6825

[1998] SASC 6825

KENT  v  POLICE
[1998] SASC 6825

Magistrates’ Appeal (Ex tempore)
Bleby J

1. The appellant in this matter, by his notice of appeal, appeals against both his conviction and sentence on 15 December 1997 in the Magistrates Court sitting at Tanunda.  The grounds of appeal as they are contained in the notice of appeal appear to relate to the question of sentence, and when the appeal was called on I questioned the appellant as to whether he wished to proceed with his appeal in relation to the convictions.  He indicated he did not, and wished the appeal to proceed solely on the question of sentence. 

2. The conviction and sentence were imposed on 15 December 1997.  The notice of appeal was filed on 3 July 1998.  It was over six months out of time.  The time limit for instituting an appeal of this nature is 14 days from the date of the decision.  I have power to extend that time if there is good reason to do so, if there are some sort of exceptional circumstances or something which may have prevented the appellant from instituting the appeal in time. 

3. The appellant has informed me that he did not know at the time that he could appeal, or that there was a time limit on doing so.  He went on holidays with that belief, and then he found difficulty in sorting out the details owing to difficulties in transport in getting to various locations in which to find out, first of all, what he could do, and secondly, to do it.  Normally by itself that would be insufficient to justify an extension of time.  

4. Another possible ground is that if there is some serious prospect of success on the appeal.  Then the court may be inclined to extend the time to ensure that a miscarriage of justice does not occur.  I will come back to that question in a moment. 

5. The offences in question were one count of driving a motor vehicle on the road, namely the Tungkillo to Palmer road, while there was present in his blood the prescribed concentration of alcohol as defined in s47A of the Road Traffic Act 1961. That was an offence contrary to s47B of the Road Traffic Act. 

6. It was alleged and accepted at the hearing that the concentration of alcohol in the appellant’s blood was .204 grams in 100 millimetres of blood. 

7. The other offence was, on the same date on the same road, driving without due care contrary to s45 of the Road Traffic Act. 

8. Pursuant to s18A of the Criminal Law (Sentencing) Act the learned magistrate imposed one penalty for both offences, namely a fine of $1,000 which, together with costs and levy, came to $1,166.  He disqualified the appellant from holding or obtaining a driver’s licence for a period of 20 months.  The magistrate allowed 12 months in which to pay the fine. 

9. The affidavit of the police prosecutor deposes to the fact that prior to the matter proceeding the sentencing magistrate explained to the appellant what his rights were, including his right to legal representation, and likely penalties for offences of this type.  No more detail was given in the affidavit.  I presume that that included the prospect of a mandatory licence disqualification in the case of the driving with the prescribed concentration of alcohol. 

10. The appellant at that time indicated that he wished the matter to proceed, and after the police prosecutor had read out the allegations, the magistrate gave the appellant an opportunity to make submissions to the court. 

11. The appellant complains before me that he was not permitted to make all the submissions he wished to make, in that he wished not only to make submissions about where he lived, but the fact that he had four months to complete a traineeship, which he tells me he has since, in fact, completed, that there is little prospect of any employment in Mt Pleasant where he lives, and it would be impossible to get transport anywhere else to go to find employment. 

12. The maximum penalty for the offence of driving without due care is a fine of $1,000. In addition, under s168 of the Road Traffic Act the court may order that the person be disqualified for a period fixed by the court or until further order from holding or obtaining a driver’s licence. The penalty for driving whilst having the prescribed concentration of alcohol in the blood where the offence is a category 3 offence, as this one was, for a first offence is a fine of not less than $700 and not more than $1,200. In addition, the person must be disqualified from holding or obtaining a driver’s licence for a period of not less than 12 months. The period of licence disqualification may not be reduced except in the manner prescribed for in s47B of the Act which prescribes that if the court is satisfied by evidence given on oath that the offence is trifling, the court may order a period of disqualification that is less than the prescribed minimum period, but not less than one month.

13. The magistrate proceeded on the basis that this was a first offence.  There was no suggestion of any question of the offence being trifling, as the facts which I am about to recount would tend to confirm. 

14. The offences took place on 30 July 1997.  The appellant was involved in a motor car accident between Tungkillo and Palmer when his vehicle left the road, struck some boulders and rolled over.  No other vehicles were involved in the accident.  The appellant was injured, as a result of which he was taken to the Mt Pleasant hospital.  Damage to the vehicle was estimated by the police to be $3,000.  The police attended at the scene and took a sample of the appellant’s blood which disclosed a reading of .204.  

15. On 17 September the appellant was interviewed and he stated that he believed that he was the driver of the vehicle.  He had gone to Tungkillo to drink, although he could not remember what he drank while he was at the hotel.   Indeed, he seems to have little recollection of the evening in question at all.  He was taking a course of antibiotics at the time. 

16. The grounds of appeal complain of the excessive nature of the sentence, particularly of the licence disqualification, and refers to the transport difficulties that the appellant has, and suggest that the magistrate did not give him a full opportunity to make submissions on the question of penalty.   He complains that the penalty, in fact, is far harsher in his case than it might be in other people’s cases because of where he lives, and the fact that it imposes undue stresses on immediate relatives who have to drive him long distances to attend to a number of essential matters. 

17. I do not doubt for a moment that there is considerable hardship caused to the appellant by the licence disqualification.  However, I would have to be satisfied, in order to allow the appeal, that the magistrate erred in some sentencing principle, that he took irrelevant material into account, or that he failed to take relevant material into account, or that the penalty was otherwise manifestly excessive. 

18. The magistrate did what he was entitled to do under s18A of the Criminal Law (Sentencing) Act and imposed one sentence for both offences.  The total fine that he imposed was $300 above the minimum fine that he could have imposed for the prescribed concentration of alcohol offence.  The total licence disqualification that he imposed was eight months over the minimum possible disqualification.  That represents the magistrate’s assessment for the penalty of both driving with the prescribed concentration of alcohol and the driving without due care.  

19. The prescribed concentration of alcohol offence was itself a serious one.  It was a category 3 offence as described in the legislation.  That was anything over .15.   The appellant’s reading was .204.  That in itself would justify the exercise of the magistrate’s discretion in respect of that offence alone of something more than the minimum fine and the minimum licence disqualification.  

20. When a penalty for the offence of driving without due care is added, and it appears to have been a serious case of driving without due care, I would find it somewhat difficult to say that the total sentence was outside the sentencing discretion of the magistrate.  Even taking into account what the appellant has put to me, that is the additional factors which he claimed he was not able to put to the magistrate, I think that the penalty imposed by the magistrate would still have been within the range of the penalty discretion available to him. 

21. If I was satisfied that the appeal had merit, I would not let that stand in the way of the appeal succeeding merely on a question of the failure to bring the appeal within time.  But, in my opinion, as the appeal really has no prospect of success on the merits and as there have been no other adequate grounds advanced for the extension of time, I can see no reason why the extension of time should be granted.  But, as I have indicated, even if I were minded to extend the time, I could not have allowed the appeal.  The order will be that the application for extension of time in which to institute the appeal is refused. 

22. Ms Alexiadis seeks costs.

23. I think in the circumstances I would be not inclined to add to the appellant’s present burden by making an order for costs.  I know it is usual that costs follow the event, but in this case I make no order for costs.