McCrae v Police No. Scgrg-99-598 Judgment No. S295

[1999] SASC 295

McCRAE v POLICE
[1999] SASC 295

Magistrate’s Appeal

1. MARTIN J. (Ex tempore) The appellant seeks to appeal against a penalty imposed on 21 March 1991. On that day, he pleaded guilty to driving a motor vehicle while there was present in his blood a prescribed concentration of alcohol as defined in s 47(a) of the Road Traffic Act 1961, contrary to s 47(b) of that Act. He acknowledged that the concentration of alcohol was 0.228 g in 100 ml of blood. The learned special magistrate recorded a conviction and imposed a fine of $400. In addition, he ordered that the appellant be disqualified from holding or obtaining a driver's licence for a period of 20 years. The appellant seeks to appeal against that period of disqualification.

2. On the same occasion, the appellant pleaded guilty to driving under disqualification.  The magistrate recorded a conviction and sentenced the appellant to a period of four months imprisonment. 

3. The ground of appeal says that the appellant was unrepresented at the time of sentencing and thought that he could appeal at any time after the imposition of sentence.  In an affidavit filed in support of this application dated 29 June 1999, the appellant says he was unaware of the 14 day time limit and acted under the false belief that he needed to serve a reasonable period of disqualification before an appeal would be considered. 

4. In view of the fact that the appellant was unrepresented and in the light of the penalty imposed, the Crown has very properly indicated that it does not oppose an application for an extension of time within which to lodge the appeal.  In view of the Crown's attitude and my clear view that the interests of justice require an extension, there will be an extension of time within which to appeal. 

5. The police apprehension report from which police prosecutors usually relate the facts for the assistance of the magistrate indicates that in the early evening of Wednesday, 19 December 1990 police observed the appellant driving a vehicle south on the Mount Compass to Goolwa road at Currency Creek.  The vehicle veered for no apparent reason to the left hand side of the road on two occasions causing clouds of dust to rise when the tyres of the vehicle came into contact with the dirt verge.  It was travelling at approximately 70 to 80 km/h.  The vehicle then pulled into a parking bay whereupon the appellant moved from the driver's side to the passenger seat and the passenger took over the position of the driver.  When police spoke with the appellant he denied being the driver and said he did not have a licence.  The appellant smelt strongly of alcohol and became abusive when told he was required to attend at the Victor Harbor Police Station.  He declined to provide his name.  The appellant put up mild resistance, but was handcuffed and conveyed to the Victor Harbor Police Station.  The timing is not precisely clear, but it appears that the breath analysis test was conducted approximately one and a quarter hours after the police had commenced their observations of the appellant's driving. 

6. The appellant was born on 18 July 1970.  As a child he appeared before the Children's Court on a number of occasions for relatively minor offences.  Both as a child and as an adult his record of offending in connection with driving is appalling.  From 1986 to 1990 the appellant repeatedly offended by driving without a licence or while under disqualification, and by driving unregistered and uninsured vehicles.

7. On 9 August 1988 the appellant drove while under disqualification.  On 27 December 1988 he drove with an excessive blood alcohol level and on 16 May 1989 he drove in a reckless or dangerous manner.  He was convicted of all those offences on 16 January 1990, and imprisoned for 14 days.  He was disqualified from holding or obtaining a driver's licence until further order.  That penalty having been imposed on 16 January 1990, only 11 days later on 27 January 1990 the appellant again drove while under disqualification and with an excessive blood alcohol level.  Those matters were not dealt with until 6 December 1990, when a fine of $700 was imposed together with 320 hours community service.  From the previous court appearance the appellant was still disqualified from holding or obtaining a driver's licence. 

8. Between the offending driving of 27 January 1990 and those matters being dealt with on 6 December 1990, the appellant offended yet again on two separate occasions.  On 26 May 1990 he again drove while under disqualification and on 24 June 1990 he drove an unregistered and uninsured vehicle while under disqualification.  On 19 December 1990, 13 days after being sentenced for the January offences, the appellant committed the offence which is currently under consideration in connection with the 20 year licence disqualification.

9. On 21 March 1991 the magistrate dealt with the offences committed in May and June 1990, as well as the matters now before this court committed in December 1990.  In addition to the four months imprisonment imposed for the offence committed on 19 December 1990 of driving whilst under disqualification, in connection with the offences committed in May and June 1990, the magistrate imposed a further period of 12 months imprisonment.  In total, therefore, on 21 March 1991 the magistrate imposed a penalty of 16 months imprisonment with a non-parole period of 13 months.  Unfortunately other offences still remained outstanding. 

10. Between the offences of 19 December 1990 and the imposition of penalty on 21 March 1991, the appellant again drove while under disqualification and with an excessive blood alcohol level.  This driving occurred on 9 February 1991.  These offences were not dealt with, however, until October 1991 when the appellant was imprisoned for 14 days and a fine of $1 500 was imposed together with a licence disqualification of three years.  As mentioned, in the meantime, on 21 March 1991 the appellant had been disqualified for the period of 20 years. 

11. It is not surprising that on 21 March 1991 the magistrate took a particularly dim view of the appellant's behaviour and of his prospects for rehabilitation. 

12. Since the imposition of penalty on 21 March 1991 the only offences recorded against the appellant are those of refusing a name and address and of damaging property, committed on 26 May 1992.  The appellant was convicted  of these offences on 25 June 1992, but discharged without penalty. 

13. For the offence of driving with an excessive blood alcohol level, committed on 19 December 1990, the appellant has now been without his licence for approximately eight years and seven months.  If the penalty is permitted to stand, he will remain disqualified for the next 11 years and five months.  While the Crown does not concede that the disqualification period of 20 years is manifestly excessive, the Crown does recognise that the period is extreme and is able to point to only one other occasion when such a period was imposed.  The previous occasion was connected with a total sentencing package and is of no assistance in this matter.  The Crown acknowledges that there have been no other matters in which a disqualification period has approached this length of time. 

14. Notwithstanding the appellant's record of repeated offending, in my opinion the period of disqualification was manifestly excessive.  In addition it appears that his Honour may have fallen into error in imposing a fine of $400.  The minimum fine was $1 500 and the maximum $2 500. 

15. As to the licence disqualification, for the purposes of s47B of the Road Traffic Act the offence was a subsequent offence and for the purposes of penalty was a 'greater offence' because the appellant's blood alcohol level was in excess of 0.15 gms of alcohol in 100 ml of blood.  In those circumstances, the minimum period of disqualification prescribed was three years.  No maximum was fixed by the legislation. 

16. The appellant is now aged 28 and lives in a stable defacto relationship of some six and half years standing.  There are two children of that relationship, aged three and one years.  The appellant is currently unemployed and has been out of work since sustaining a work injury in 1989.  He is unable to pursue labouring work and hopes to become a courier. 

17. For the reasons given, in my opinion the sentencing discretion miscarried as to the period of licence disqualification.  As to the fine, there is no indication as to the basis upon which his Honour arrived at the fine of $400.  As mentioned, his Honour may have erred in that he overlooked the minimum fine prescribed by the Road Traffic Act. Alternatively, his Honour may have had in mind s 13 of the Criminal Law (Sentencing) Act 1988 which provides that the court must not make an order requiring a defendant to pay a pecuniary sum if the court is satisfied that the means of the defendant are such that the defendant would be unable to comply with the order or that compliance with such an order would unduly prejudice the welfare of the dependants of the defendant. The application of s 13 to these types of provisions in the Road Traffic Act is confirmed by the judgment of Lander J in Button v Police (1997) 71 SASR 258.

18. I have been given by counsel for the appellant certain information as to the appellant's financial circumstances.  In my opinion it would be inappropriate to impose any fine other than the $400 that was imposed in March of 1991.  I have reached the clear view that s.13 operates to prevent the imposition of any other monetary penalty.  In those circumstances the fine of $400 and associated costs is confirmed.

19. The appeal is allowed for the purposes of setting aside the period of 20 years disqualification.  As to the proper period of disqualification, counsel for the appellant has submitted that even eight years would have been manifestly excessive.  Although there was no need for development of the submissions, counsel for the appellant sought to compare periods of disqualification imposed for the more serious offences such as Causing Death by Dangerous Driving. 

20. In view of the fact that the appellant has already served a period of disqualification in excess of eight years, it has been unnecessary for me to embark upon an examination of or hear submissions concerning periods of disqualification that might be considered appropriate for the appellant's offending given his record of prior offending.  In those circumstances I have not attempted to fix a penalty that might be considered a precedent for offending of this type where an offender has such a record.  In order to meet the circumstances of this case I substitute a penalty of six and a half years licence disqualification to date from 21 March 1991. That period of disqualification has therefore expired.