Mason v Police No. Scciv-03-880

[2003] SASC 279

MASON v POLICE

[2003] SASC 279

Magistrates Appeal:  Criminal

1. PERRY J.  (ex tempore)    The appellant pleaded guilty in the Magistrates Court sitting at Port Lincoln to charges of driving under the influence of liquor and disobeying a condition of his provisional driver’s licence.

2. The sentencing magistrate dismissed an application to declare the offence trifling pursuant to s 47(3)(b) of the Road Traffic Act 1961 and proceeded to record a conviction. He imposed a fine in the sum of $700 and as well disqualifying the appellant for the minimum period applicable to an offence of this kind, the appellant being a first offender, that is, for 12 months.

3. The appeal to this Court is from the refusal of the magistrate to find that the matter was trifling.

4. The offences arose out of an incident which occurred on 19 January 2003 at Port Lincoln at about 3.00 am in the morning.

5. The appellant is a student, then aged 16 years, studying Year 12. He resided at Port Lincoln. On the night in question, he drove his car to the high school where he left it parked, and then went to a friend’s home where he had some alcohol to drink. He and his friend then went on to a party at another place where he admits to drinking to excess.

6. According to the evidence given by the appellant before the sentencing magistrate, the appellant does not remember what time he left the party and, thereafter, his recollection of events is somewhat patchy.

7. It is clear, however, from other evidence, more particularly the apprehension report which was tendered by consent, that when he left the party he was seen to enter a white Mitsubishi Cordia, which was not his own car, parked outside another house which was near to where he lived. The vehicle was seen to jump forward, then roll across the street, coming to rest against the gutter. I am told that it moved a distance of about five metres. There is no evidence that there was anyone else in the street where the incident occurred.

8. The police were called and the appellant had a conversation with them. In the apprehension report, it is recorded that the defendant told the police that the reason he drove the car was because he thought it was his and he needed to get home.

9. His blood alcohol reading was 0.162 grams per 100 millilitres of blood.

10. Pausing there, one might fairly consider the case to be representative of the not uncommon situation of somebody who has over-imbibed, acting irrationally but with some perception of what he or she was doing, albeit clouded by inebriation, and the next day suffering from a degree of retrograde amnesia.

11. In this case the application to have the case declared trivial took on another dimension.

12. The appellant said in his evidence that he had a history of sleepwalking, that he had suffered from the problem all his life and it had only occurred when he went to sleep at night. He admitted that it never occurred when he went to sleep during the daytime.

13. The existence of a predisposition to walk in his sleep was confirmed in evidence given by his father. It appears that it was not a condition in which the appellant was ever offered any medical assistance and it was not a condition which had ever manifested itself in any situation in which he had ever come to grief in any way.

14. The sentencing magistrate delivered reasons for dismissing the application to declare the offence as trivial and, in the course of doing so, he dealt with the evidence of sleepwalking. He said, quite properly, that he could not overlook the fact that the appellant’s degree of intoxication may well have been responsible for his disorientation and confusion. He concluded:

    “At the end of the day the facts establish that the defendant was intoxicated, he was attempting to start the Cordia, his intention was to drive it home, he did not start it, but drove it in the sense described a short distance of five metres. If he had been correct in that the vehicle was his vehicle, then presumably he would have started it and driven it.”

15. The sentencing magistrate went on to refer to several decisions, notably Police v Hughes; Police v Hodge[1] and Merrill v Police[2] which relate to trifling applications.

    [1] (1996) 188 LSJS 367.

    [2]    (Unreported) Perry J, 5 September 1996, judgment No S5796

16. He referred also to the judgment of Olsson J in Campbell v Fuss.[3] I note that the blood alcohol concentration in that case was 0.2.

    [3] (1991) 55 SASR 355.

17. As Olsson J pointed out in that case, the intention of the defendant was only to reposition a parked vehicle and not to drive it anywhere. The sentencing magistrate in this case contrasted that with the intention of the appellant, which was to drive the vehicle home.

18. The magistrate concluded:

    “There is no doubt that the facts of the matter before me are unusual, nevertheless in my view it was clearly the intention of Parliament to prevent people who are so much under the influence of intoxicating liquor or a drug from driving or even attempting to drive a motor vehicle. I am not persuaded that the offence is trifling, but it is clearly at the lower end of the range of seriousness for matters of this kind.”

19. He then proceeded to give short separate reasons for imposing the penalty to which I have referred.

20. In an amended notice of appeal the appellant complains that the sentencing magistrate failed to give sufficient weight to the fact that the car moved only a distance of five metres, and that it was impossible for the appellant to actually start it. It is further asserted that the magistrate erred in failing to give appropriate weight to the fact “that the appellant’s actions were likely a product of sleepwalking and were not conscious or intentional and placed impermissible weight on the defendant’s intention in the matter”.

21. Mr Semmens, who appeared for the appellant on the hearing of the appeal and also in the court below, emphasised the fact that the immediate circumstances of the offending were unusual: that the act of driving was a technical act, in the sense that the engine was not started up but that the vehicle was put in motion only and rolled down the hill; that the appellant was clearly unable to start the car and could never have started it and driven any further; and that there was an absence of evidence of any immediate threat to any other person. Quite properly, Mr Semmens did not dwell on the suggestion that sleepwalking explained the appellant’s conduct. There was no evidence that he fell asleep before the offence was committed, and the evidence on that topic should be disregarded.

22. However, I must say I consider this matter to be somewhat borderline. A declaration that an offence is trifling would not normally be made if the offence was a typical one of its kind, but I accept that this was not typical of its kind.

23. I accept the argument put by Mr Nguyen, who appeared for the respondent, that the intention of the legislation is to impose the penalties appropriate for the offence upon people who attempt to set a vehicle in motion, as well as driving a vehicle in the ordinary sense.

24. On the other hand, consideration of the question whether or not the offence is trifling depends upon an evaluation of the totality of the circumstances.

25. In this case, in my view, the sum total of the circumstances amounted to the fact that this was an atypical offence of its kind; that it could not have resulted in any sustained act of driving; and that in fact it resulted in a movement of the vehicle over a very short distance, with minimum risk to other persons.

26. In my view, the sentencing magistrate erred in failing to find that it was a proper case in which to invoke his power to declare the offence trifling.

27. In coming to that view, I in no way condone the conduct of the appellant, who behaved very foolishly. But that, I think, is about the most that one could say about it.

28. As a young man with no prior record of offending, he has certainly learnt a lesson from the fact that he has been charged with this offence and been obliged to appear in court and give evidence as to the circumstances, and then lodge an appeal.

29. In my view, the justice of the case would have been met by finding that the court was satisfied that the offence was trifling, which has the result that a lesser period than the minimum licence suspension of 12 months which would otherwise be applicable might have been considered.

30. I allow the appeal for the purpose of quashing the sentence of 12 months licence suspension. I substitute a finding that the Court is satisfied that the offence is trifling within the meaning of s 47 (3)(b) of the Road Traffic Act 1961. I substitute an order that the appellant be disqualified from holding or obtaining a driver’s licence for a period of three calendar months.

31. I would not interfere with the fine of $700, which will remain in effect.

    [FOLLOWING DISCUSSION AS TO WHETHER THE APPELLANT HAD BEEN DRIVING PENDING THE APPEAL]

32. PERRY J:               The substituted order of three months suspension will commence on and from 12.01 am on 28 July 2003.

33. I order that the respondent pay the appellant’s costs of and incidental to the appeal which I fix in the lump sum of $165.

    JUDGMENT CITATIONS
    LISTED IN ORDER OF APPEARANCE IN JUDGMENT

    1. (1996) 188 LSJS 367.

    2.    (Unreported) Perry J, 5 September 1996, judgment No S5796

    3. (1991) 55 SASR 355.