O'DONOGHUE v Police - [2007] SASC 169

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
O'DONOGHUE v POLICE
[2007] SASC 169
Judgment of The Honourable Justice Kelly (ex tempore)
10 May 2007
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING
Appeal against sentence – appellant pleaded guilty to one offence of driving a motor vehicle with a prescribed concentration of alcohol in the blood contrary to s47B of the Road Traffic Act, and one offence of driving without a licence contrary to s47(1)(a) and (b) of the Motor Vehicles Act – magistrate recorded a conviction in respect of both offences – in respect of the Road Traffic Act offence, the magistrate fined the appellant $1,100 and ordered he be disqualified from holding a licence for 22 months – in respect of the Motor Vehicles Act offence the magistrate recorded a conviction and fined the appellant $250.00 – appellant appeals the penalties imposed for the Road Traffic Act offence – whether period of disqualification and amount of fine excessive – whether magistrate erred in not providing reasons – whether magistrate failed to take into account the period of two months licence disqualification already served by the appellant as a result of the automatic disqualification of his licence – HELD: failure to give reasons did not constitute an error of law in the circumstances of this case – the fine and disqualification period were within the upper range of penalties available to the magistrate –appeal dismissed.
Road Traffic Act 1961 s47B; Motor Vehicles Act 1959 s74(1)(a) & b; Criminal Law (Sentencing) Act 1988 s10, referred to.
Badari v Police [2003] SASC 149; Hodgson v Police [2001] SASC 35; Edwards v Police [2000] SASC 121, applied.
Powditch v Police [1988] SAS 6844, distinguished.
Police v Conway; Police v Parker [2006] SASC 186, considered.

O'DONOGHUE v POLICE
[2007] SASC 169
MAGISTRATES APPEAL
KELLY J

On 16 March 2007 the appellant pleaded guilty in the Adelaide Magistrates Court to two charges contrary to the Road Traffic Act 1961 and the Motor Vehicles Act 1959.
For the offence of driving a motor vehicle with a prescribed concentration of alcohol in the blood contrary to s 47B of the Road Traffic Act, the Magistrate recorded a conviction, fined the appellant $1,100 and ordered that he be disqualified from holding or obtaining a driver’s licence for a period of 22 months.
For the offence of driving without a licence, contrary to s 74(1)(a) and (b) of the Motor Vehicles Act 1959 the Magistrate recorded a conviction and fined the appellant $250.
The maximum penalty for the first offence, given that the appellant was a second offender, was a fine not less than $700 and not more than $1200 and disqualification from holding or obtaining a driver’s licence for a period not less than 12 months. The maximum fine for the second offence prescribed by the statute was $1250.
The circumstances of the offending were that the appellant was stopped in his motor vehicle on Jetty Road, Glenelg, on the evening of the 3 May 2006. A breath analysis test showed that his blood alcohol reading was .096.
He had been drinking at a hotel nearby and had driven approximately 100m before being directed to stop. The police issued an immediate notice of disqualification, effective from 3 May 2006 to 3 November 2006.
On 11 July 2006 the South Australian Police sent the appellant a letter as a result of the Full Court decision in the Police v Conway; Police v Parker (the Conway Notice).
The disqualification of his driver’s licence was a particular inconvenience to the appellant, who is a self-employed caterer. Counsel for the appellant asked for a period of disqualification closer to the minimum period of 12 months.
The appellant appeals the sentence for the first office imposed on the basis that the fine for the offence of driving with a prescribed concentration of alcohol in the blood and the period of the driver’s licence disqualification was manifestly excessive and that in any event the Magistrate failed to take into account the period of disqualification already served by the appellant as a result of receipt of the immediate notice of suspension on the evening of 3 May 2006.
An additional ground argued on the appeal was the alleged failure of the sentencing Magistrate to give any reasons for the sentence he imposed. It appears from the affidavits of Mark Robert Love, sworn on 4 April 2007, and the affidavit of Andrew Douglas, sworn on 2 May 2007, that there may well have been ex tempore remarks made by the Magistrate upon sentencing the appellant. Indeed, Ms Beverdam, counsel for the appellant on the hearing of the appeal, informed the court that there were notes taken by the Magistrate’s clerk which somehow were lost in transit between the Magistrates Court and this Court. Nevertheless, the fact is that for whatever reason, this Court does not have the benefit of any reasons of the Magistrate, and neither of the deponents to the affidavits appear to recall what those remarks were.
The appellant’s counsel was correct to submit that generally it is important that magistrates give reasons, even if only brief ones, for sentences they impose. The purpose of sentencing remarks, as Lander J pointed out in the case of Badari v Police[2] is to enable the offender to know why it was that a particular sentence was imposed and further, to assist any court of appeal to carry out its function by understanding how the sentencing discretion was exercised. However, the failure to produce reasons is not of itself an error of law. The question must be whether the function of the appeal court is frustrated by this failure.
[2] [2003] SASC 149
I respectfully agree with the remarks of Chief Justice Doyle in Hodgson v Police[3]:
For instance, in a simple case in which there is no dispute about the facts, the absence of reasons might not embarrass an appellate court in any way. It might be that in such a case a failure to give reasons is not an error of law and that the sentence should not be set aside unless it is excessive.
[3] [2001] SASC 35 at [8]
In my view, this is such a case. Neither of the offences to which the appellant pleaded guilty attracted custodial sentences and there was no dispute as to the facts. It is not a complex case which requires any detailed analysis of the evidence or legal principles.
I accept the respondent’s submission that in the light of the nature of these charges, the fact that the appellant pleaded guilty, the range of penalties prescribed by statute for the offences and the fact that this Court has all of the material on which the Magistrate sentenced, that the absence of reasons for the particular sentence imposed in this case is not in itself an error.
I turn now to consider the appellant’s main complaint, that the sentence for the offence of driving with a prescribed concentration of alcohol in the blood was manifestly excessive. The appellant’s argument was that the Magistrate failed to have sufficient regard to the matters set out in s10 of the Criminal Law (Sentencing) Act 1988 when sentencing the appellant.
Counsel argued that this is apparent from the failure of the Magistrate to sentence the appellant to the minimum penalty prescribed for a category two offence in circumstances where there were no aggravating features of the offending warranting any increase in the sentence to be imposed. It was argued that had the Magistrate adopted this approach, it was inevitable that he would have arrived at a lesser pecuniary penalty and period of disqualification. In my view, that argument is misconceived.
Whilst it is correct that once the relevant minimum penalty is defined by the Act, then the length of the period of suspension to be imposed must be determined by reference to more general considerations extrinsic to the Act, there is no principle which requires a sentencing magistrate to impose the minimum absent any aggravating features of the offence.[4]
[4] Powditch v Police [1998] SASC 6844 per Perry J
Here there were a number of circumstances personal to the appellant which were highly relevant to the sentence ultimately imposed by the Magistrate. He had five previous convictions for this offence, committed in 2002, 1997, 1992, 1990 and 1988. It was also the third occasion on which he had been before the Court for driving without holding an appropriate licence. Given the appellant’s history, considerations of general and specific deterrence were very important when sentencing this offender. The remarks of Mulligan J in Edwards v Police[5] are particularly pertinent to the facts of this matter:
There are three major sentencing principles which are relevant to this matter. The first is adequate punishment. A person who has committed drink driving offences on three previous occasions must expect a punishment which is adequate and which will be more than the minimum allowed by Parliament, otherwise, in my view, the sentence could not be regarded as adequate. The fact that the Parliament has excluded offences committed more than five years before the subject offending for the purpose of categorising offences, does not, in my view, mean that they are to be regarded as irrelevant.
The second principle is that of community protection. A person who commits this offence is a danger to the public, for obvious reasons, and that is a matter which much be reflected in the sentence.
The third principle is that of deterrence, both personal and general. Because of the previous convictions, there seems, regrettably, to be a need for personal deterrence. The sentence must be such that the appellant is himself is deterred from re-offending. There is also a need to impose a sentence, having regard to general deterrence, so as to indicate that those who are minded to commit this offence would be adequately punished and thereby deterred from committing the offence.
[5] [2000] SASC 121 at [21]-[23]
In this case five previous convictions have not apparently deterred the appellant from drinking and driving. It is beside the point that on this occasion he had only driven some 100 metres away from the hotel on his way home when apprehended by the police. The Magistrate was entitled to take the view, as he obviously must have, that a sentence within the upper range of penalties appropriate for this offence was called for.
Given all of these circumstances, whilst the fine and disqualification period were within the upper range of penalties available to the Magistrate, they were well within the discretion available to the Magistrate.
The complaint that the Magistrate failed to take into account the period of some two months’ licence disqualification already served as a result of an automatic disqualification of his licence on 3 May 2006 up to and including 11 July 2006 cannot be sustained. It is evident from the affidavits filed on the appeal that the Magistrate was aware of that period and specifically referred to that period and his intention to take it into account during the course of sentencing submissions.
For these reasons I would dismiss the appeal.

[1] [2006] SASC 186