Kittel v POLICE - [2012] SASC 95

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
KITTEL v POLICE
[2012] SASC 95
Judgment of The Honourable Chief Justice Doyle (ex tempore)
4 June 2012
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING UNDER INFLUENCE OF INTOXICATING LIQUOR OR A DRUG - SENTENCE AND PENALTY
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - PROCEDURE ON SENTENCING - TYPES OF ORDER ON SENTENCE
Appeal against a sentence imposed by a Magistrate – the appellant was sentenced by a Magistrate for the offence of driving a vehicle while so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the vehicle, contrary to s 47(1)(a) of the Road Traffic Act 1961 (SA) (RTA) – the Magistrate convicted the appellant, and ordered that he be sentenced to imprisonment for one month – the Magistrate ordered that the sentence be suspended upon the appellant entering into a bond to be of good behaviour for 12 months – the Magistrate ordered that the appellant be disqualified from holding or obtaining a driver’s licence until further order – the Magistrate then ordered that the appellant could not apply to remove the disqualification for a period of not less than three years, and then only if a treating doctor certified that the appellant had overcome his alcoholism – the issues on appeal were: (1) whether the Magistrate had the power to order that the appellant could not apply to remove the disqualification for a period of not less than three years, and then only if a treating doctor certified that the appellant had overcome his alcoholism; and (2) whether the order suspending the licence until further order was manifestly excessive.
Held: appeal allowed – (1) there is no provision in the RTA for a pre-emptive order of the kind made by the Magistrate – the order was made beyond the Magistrate’s power; (2) the sentence imposed was manifestly excessive.
Road Traffic Act 1961 (SA) s 47(1)(a), s 47(3), s 47J, s 47J(4), s 47J(9), s 168, referred to.

KITTEL v POLICE
[2012] SASC 95
Magistrates Appeal: Criminal

DOYLE CJ (ex tempore): On 14 July 2009, Mr Kittel was sentenced by a Magistrate for the offence, among others, of driving a vehicle while so much under the influence of intoxicating liquor as to be incapable of exercising the effective control of the vehicle contrary to s 47(1)(a) of the Road Traffic Act 1961 (SA) (the RTA).
One of the orders that the Magistrate made was that Mr Kittel be disqualified from holding or obtaining a driver’s licence until further order. Much later, Mr Kittel again came before the Magistrates Court charged with driving a vehicle while disqualified from holding or obtaining a driver’s licence, based on the disqualification order just referred to.
The Magistrate before whom the matter came raised doubts about the validity of some of the orders made by the Magistrate in July 2009. This led to an application for an extension of time within which to appeal against the sentence of July 2009, the proposed appeal challenging the validity of certain of the orders made by the Magistrate on that occasion.
I am prepared to extend to 12 April 2012 the time within which to appeal against the sentence. I do so because I am satisfied that certain of the orders made by the Magistrate are invalid. However, the delay once the second Magistrate raised the issue is regrettable. The matter should have been attended to much more promptly than it has.
I turn to the orders made by the Magistrate in 2009.
The Magistrate convicted Mr Kittel and ordered that he be imprisoned for one month. The Magistrate ordered that the sentence be suspended upon Mr Kittel entering into a bond to be of good behaviour for 12 months. Mr Kittel entered into that bond. I gather that the term of the bond has been completed. The Magistrate made an order that Mr Kittel be disqualified from holding or obtaining a driver’s licence until further order.
The court record has the following entry after the record of that disqualification:
‘Defendant warned as to consequences of driving while disqualified. No application for restoration of licence to be made in less than three years from today and then only if treating doctor certifies that defendant has overcome his alcoholism.’
No reasons for this order are recorded. The endorsement on the complaint refers to s 47(1)(A) of the RTA. That must be a reference to s 47(1)(a) of the RTA. That provision creates the offence of driving contrary to the section and also goes on to provide for a fine or imprisonment as the punishment for the offence. There is no reference in that provision to a licence disqualification or to an order of the kind set out above. The order for one month’s imprisonment is supported by s 47(1)(a) but that provision cannot support the disqualification order that was made or the other order set out above.
Section 47(3) of the RTA provides for the making of a disqualification order. For a first offence, the period of the disqualification order must be not less than 12 months. For a subsequent offence as defined and this was a subsequent offence, the disqualification must be for a period of not less than three years. This provision does not provide for disqualification until further order, nor does it provide for an order of the kind set out above.
An order disqualifying Mr Kittel from holding or obtaining a driver’s licence until further order could have been made under s 168 of the RTA. That is a well-known power and may well be the basis upon which the Magistrate made the order for disqualification. But that provision does not empower an order of the kind set out above.
It is likely that the Magistrate had s 47J in mind. That section deals with ‘recurrent offenders’. In the circumstances identified in that provision, the court must order an offender to attend an assessment clinic for the purposes of a report being provided to the court. If the court is satisfied that the offender is ‘dependent on alcohol or drugs’ the court must disqualify the person from holding or obtaining a driver’s licence until further order: s 47J(4). But that provision does not authorise an order of the kind set out above. Section 47J provides that when a disqualified person applies for a revocation of a disqualification, the court must obtain a report from the assessment clinic and can revoke the disqualification if satisfied that the applicant is no longer dependent on alcohol or drugs: s 47J(9). There is no provision for a pre-emptive order of the kind made by the Magistrate.
I conclude that the order that I set out above was beyond the Magistrate’s power and should be set aside. It is severable from the other orders made and there is no difficulty with setting aside that order and leaving other orders standing.
Accordingly, I direct that the Magistrate’s order relating to the application for restoration of licence be set aside.
That leaves the remaining question of whether the sentence imposed by the Magistrate is excessive or otherwise wrong and should be quashed, and whether Mr Kittel should be re-sentenced.
I have very little information before me about the circumstances as they were before the Magistrate in July 2009. I was referred to certain material linked to later offences committed by Mr Kittel. But in my opinion that material is not admissible in relation to the sentence imposed by the Magistrate in July 2009. No complaint was made about the suspended sentence of one month’s imprisonment but Ms Burgess has submitted that the order suspending the licence until further order is excessive.
It maybe stretching things somewhat, but under the circumstances I am persuaded that that order is excessive. Mr Kittel had a relatively poor record but probably not a record which justified an order of that kind. Indeed, it occurs to me that the order the Magistrate made for suspension until further order, may have been in some way linked to her view of the scope of s 47J.
Accordingly, I propose to set aside the order suspending or prohibiting Mr Kittel from holding or obtaining a driver’s licence until further order and to substitute an order that he be suspended from holding or obtaining a driver’s licence for a period of four years. That period will date from 14 July 2009.
Although there is doubt about the power of a court to backdate a licence suspension, I take the view that in allowing an appeal where my power is to make the order that should have been made by the court below, I can in effect substitute as the order of the Magistrates Court the order that I do substitute, namely, that Mr Kittel be suspended from holding or obtaining a driver’s licence for four years from 14 July 2009. Other than that, I do not for reasons I have indicated, disturb the order for imprisonment or the order suspending that order.
Accordingly, I make those orders and that completes the matter.