McCulloch v Police No. Scgrg-97-1417 Judgment No. S6443

[1997] SASC 6443

McCULLOCH  v  POLICE

Perry J   (ex tempore)

The appellant appeals against the penalties imposed upon him following his plea of guilty in the Magistrates Court sitting at Port Pirie, to 2 driving counts. They were, that on 21 December, 1996, at Laura, he drove with an excess of the prescribed concentration of alcohol, contrary to s47 of the Road Traffic Act 1961. The concentration alleged was .264 grams per 100 millilitres of blood.

The second count was that on the same occasion he drove whilst disqualified from holding or obtaining a licence contrary to s91 of the Motor Vehicles Act 1959.

The appellant was represented in the court below by counsel, who put submissions on his behalf as to penalty.

On the PCA count, the learned sentencing Magistrate imposed a fine of $2,500, together with court fees,  On the same count he suspended the appellant's licence for ten years.  The period of that suspension was directed to commence at the expiration of an earlier term of three years disqualification imposed on 29 May 1995 on another PCA matter.

With respect to the charge of driving whilst disqualified, the learned sentencing Magistrate imposed a custodial term of three months imprisonment.
The notice of appeal asserts that both the disqualification for ten years and the sentence of imprisonment were manifestly excessive.  No appeal was mounted against the fine of $2,500.

The appellant was aged 35 years at the time of the offences.  He is a single man living with his mother at Redhill, which I am given to understand is about 20 kilometres from Snowtown.  He was employed as a labourer in the grain depot, and before then worked at a hay mill in Laura.  During the three years or so he had lived at Red Hill he was continuously employed.

According to the affidavit put before the court sworn by Mr Wright, the prosecutor who appeared in the court below, the investigating police attended on the night of the offence, which was a Saturday night, at the scene of an accident which had occurred four kilometres south of Laura. It appears that the appellant had been involved in rolling over his vehicle.  On the face of it, there was no other vehicle involved in the accident.

By the time the police attended at the scene, the appellant had been taken to Laura Hospital where a sample of blood was taken.  On analysis this indicated the level to which I have referred.  It is not unimportant to note that the appellant received a broken leg, torn ligament and a bruised back and later received treatment at Royal Adelaide Hospital.

The appellant admitted to a long history of prior offences, largely traffic offences.  They commenced from 1978 when he was convicted in the juvenile court of driving with excess blood alcohol and driving without due care.

In his history of offending there are some relatively minor dishonesty offences, including convictions for larceny and unlawful possession.  More significantly, on 29 May 1995 he was convicted in the Port Pirie Magistrates Court of driving with excess blood alcohol, which itself was a breach of a condition of the probationary licence which he had at that time.  On that occasion, a fine of $1,200 was imposed, and he was disqualified from driving for three years.  He was in breach of that order for disqualification at the time of the offending the subject of the present appeal.

I have also received an affidavit sworn by Mr Alevizos, a solicitor who appeared on behalf of the appellant before the learned sentencing Magistrate.  He confirmed the details of the appellant's circumstances as I have indicated them, and urged that any sentence of imprisonment be suspended. He emphasised that his client had paid a high price for his indiscretion, given the injuries which he had suffered, and the fact that quite apart from any order made by the learned sentencing Magistrate, the injuries had put him out of work.

The appellant had been drinking at the Laura hotel on the night in question with friends, and was driving himself to a party when the accident occurred.  It was submitted by Mr Alevizos in the court below and repeated before me, that the act of driving was a product of a spur of the moment decision against a background of drinking.

In his submissions on appeal, Mr Michael Boylan, who appeared for the appellant, submitted that while the appellant's record is bad, this being the fifth conviction of the appellant for driving with excess blood alcohol, the first two of those convictions were many years ago in 1978 and 1982.  Furthermore, the maximum fine, namely, a fine of $2,500 was imposed.

Against that background, he urged upon me that the suspension of ten years imprisonment was simply too high and not justified, having regard both to the personal circumstances of the appellant and the nature of the offence in question.

Quite properly, Mr Grant of counsel for the respondent conceded that the period of suspension of licence might be too severe.

Certainly, it does not appear that the appellant has learnt his lesson following the long history of prior offences of a similar kind.  But having regard to the overall circumstances, in my opinion, the suspension of ten years is too severe.  When I come to dispose of the appeal I will reduce that to a period of five years to commence at the expiration of the other period of licence disqualification to which I have referred.

I have more difficulty, however, with the second ground of the appeal, that is, the appeal against the term of imprisonment.

The maximum for a first offence, which this was, of driving under suspension, is six months imprisonment.

In the course of his sentencing remarks, the learned  sentencing Magistrate said:

"In respect of the drive disqualified, there is no doubt  in my mind that imprisonment is the appropriate penalty.   It is true you do not have any prior history of drive  disqualified. It is equally true your licence, having been  disqualified on a very substantial number of occasions, that you have been warned sternly about the consequences of  driving disqualified.  I do not see that there would be any  basis at all for suspension of the sentence.  I impose a  sentence of three months imprisonment."

Quite properly Mr Boylan did not  advance any argument that the refusal by the learned sentencing Magistrate to suspend the term of imprisonment  was, of itself, indicative of appealable error.

It appears that his client has already served one month  of the three month term of imprisonment, before being  released on bail pending the hearing of the appeal.

Even allowing for all of the matters put forward by  Mr Boylan, I am unable to perceive that there is anything in  the sentencing remarks which indicates that the learned  sentencing magistrate erred in imposing the sentence of  imprisonment under review.

Standing back from the matter, I am quite  unable to accept that it is a sentence which could be  said to be so heavy as calling for intervention by this  Court.

It is true that other courts may have imposed a lesser  period of imprisonment, but that is not the test.  It is  trite law that in order to justify interference with the  exercise of the sentencing discretion, it is necessary to  demonstrate that there has been a misapprehension of fact or an error of law.  At the very least, it must appear  that the sentence imposed is so disproportionate to the  offending and other relevant matters as to demand  intervention on appeal.

In my opinion, while the sentence of three months  imprisonment was severe, it cannot be said that it was  manifestly excessive.  The appeal against the sentence of  imprisonment is dismissed.

However, for the reasons which  I have indicated, the appeal against the period of licence  disqualification is allowed.  That period is reduced to  five years, to commence from the expiration of the previous, as yet unexpired, term of licence  disqualification.

There is no order as to the costs of the appeal.