Leaney v Police No. Scgrg-99-500 Judgment No. S268

[1999] SASC 268

LEANEY  v  POLICE
[1999] SASC 268

Magistrates Appeals:  Civil

1. DOYLE CJ.   (ex tempore)  This is an application for an order extending the time within which an appeal against sentence may be instituted, and if that order is made an appeal against sentence.

2. Mr Leaney pleaded guilty on 21 January 1997 to a charge of driving under the influence of alcohol on 23 November 1996. The offence was, for the purposes of s47(1) of the Road Traffic Act, a second offence.  The earlier offence was not actually driving under the influence but the lesser offence of driving with the prescribed concentration of alcohol, which is defined by s47(4) as a previous offence.

3. The magistrate imposed a fine of $1,500 which was the minimum fine and ordered that the appellant be disqualified from holding or obtaining a driver’s licence until further order.  The sentence was imposed on 21 May 1997 just over two years ago.  Mr Leaney was represented by a solicitor at the time.

4. Mr Leaney now wants to appeal against the licence disqualification.  The only explanation for the two year delay in appealing emerges from Mr Leaney’s submissions.  He told me about a case of which he has learned in which what seems to be a lesser sentence was imposed.  That explanation in itself is not adequate to justify an extension of time so long after the sentence was imposed.

5. However I have also considered whether the appeal has any chance of success.  Having regard to the terms of the legislation it seems to me that the appeal could not succeed.

6. Mr Leaney faced a minimum suspension of three years unless the offence was trifling.  The circumstances of the offences put to the magistrate indicate that it could not be regarded as a trifling offence.  The magistrate had the benefit of an assessment report by the Drug and Alcohol Services Council.  The magistrate was required to get that assessment by s47J(1).  The reporting doctor advised that Mr Leaney suffered from alcoholism.  In those circumstances s47J(4) required the magistrate to make the order that she made disqualifying Mr Leaney from holding a driver’s licence until further order.  The magistrate had no choice.  In those circumstances there is no prospect of Mr Leaney successfully challenging the order made.  Short of showing that the basis for the order was not made out, an appeal has to fail, and on the material before the magistrate the basis for that order was made out.

7. Mr Leaney can apply to the Magistrates Court under s47J(5) for a revocation of the disqualification, but such an application, although it is possible it can be made before the three years has expired, cannot lead to a shortening of the minimum three years suspension period.  I refer to s47J(6).  In other words while it is possible, and I make no decision about the matter, that the application can be heard before the three years is up, the terms of the legislation seem to make it clear that even if the application succeeds it cannot result in the suspension being shortened below three years.  If Mr Leaney is going to make this application he will have to submit to an examination at an assessment clinic.  If the court is satisfied that he no longer suffers from alcoholism it would then be open to the court, subject to the three year minimum, to revoke the disqualification.  If Mr Leaney makes the application to the court he would be well advised to have his own medical evidence so that that will be considered as well.

8. It follows that the application for an extension of time must be refused.  There is no good reason for the delay and no grounds for extending time.  The appeal itself has no prospect of success.  For those reasons I order that the application for an extension of time be refused.