Oliver v Police No. Scciv-03-1501

[2004] SASC 8

OLIVER v POLICE
[2004] SASC 8

Magistrates Appeal

1. GRAY J                 This is an appeal against a sentence imposed by a magistrate.

   Facts

2. On 22 August 2003 the appellant approached the T-intersection of Hepenstal Road and Main South Road in his motor vehicle and intruded into the road thereby causing another vehicle to collide with his utility. The appellant’s vehicle was stationary at the time of the collision. Contrary to Rule 73 of the Australian Road Rules, the appellant failed to give way to a vehicle travelling on the continuing road when he was turning left onto Hepenstal Road.

3. The appellant informed the police that he had consumed 10 beers at a tavern between 8:30pm and 11:00pm. He was required to submit for blood alcohol testing. He was charged with driving a motor vehicle on roads while there was a concentration of alcohol of .149 grams in a hundred millilitres of blood contrary to section 47B of the Road Traffic Act 1961 (SA).

   Remarks

4. The learned magistrate convicted the appellant following his pleas of guilty of breaches of section 73(2)(a) of the Australian Road Rules and section 47B(1) of the Road Traffic Act. The magistrate proceeded to exercise his powers under section 18A of the Criminal Law (Sentencing) Act 1988.

5. The magistrate took into account the appellant’s guilty plea at the first available opportunity and that the appellant had no previous court appearances.  The magistrate made a 25 per cent reduction in the penalties that would otherwise apply.  The magistrate also acknowledged that the appellant was frank with the police and had paid compensation for the property damage.  The magistrate then remarked:

   Taking all those matters into account and the matters that have been put to me on your behalf, I convict you of these two offences. Under section 18A I impose one penalty, a fine of $700.00. Court fees $130.20, two levies at $35 is $70.00, $16 Prosecutor’s appearance fee, makes a total of $916.20. On Count 2, the drink driving charge, you will be disqualified from holding or obtaining a driving licence for a period of 12 months to commence forthwith. You are eligible to participate in the Alcohol Interlock Scheme pursuant to section 50(1)(1) of the Road Traffic Act but subject to the rules of that scheme.

   Issues on the Appeal

6. Counsel for the appellant submitted that considering the circumstances of the offences and the appellant’s antecedents the disqualification from holding a driver’s licence for a period of 12 months was manifestly excessive.

7. Counsel submitted that when considering a penalty for driving under the influence personal factors can be taken into account.  In Taylor v Samuels[1] King J took into account good character and extenuating circumstances for sentencing purposes in that case. It was said that the appellant’s personal circumstances should all be taken into account in the present case. Counsel highlighted that the offences were out of character. Counsel submitted that although the Act imposed a minimum licence disqualification, the court had an otherwise unfettered discretion to determine the appropriate penalty. Finally it was submitted that the magistrate had incorrectly exercised his powers under section 18A of the Sentencing Act.  It was said that having decided to impose the one sentence the magistrate only did so in part.  This was contended to be impermissible.

   [1] (1977) 16 SASR 266 at 283-284.

8. Counsel for the Crown submitted that the disqualification ordered was within the discretion of the magistrate. Counsel referred to section 47B (3) of the Road Traffic Act which provides that the minimum period of licence disqualification for a category 2 offence is not less than six months.  Although for subsequent offences the minimum penalty increases no maximum period is set.  Counsel drew attention to the remarks of Perry J in Powditch v Police[2]:

   …once the relevant minimum penalty is defined by the Act, the Act ceases to have any further work to do in that respect and the length of the period of suspension to be imposed must then be determined by reference to more general considerations, extrinsic to the Act.

   [2] Powditch v Police  (Perry J, 8 August 1998, unreported).

   Consideration of the Issues

9. Section 18A of the Criminal Law (Sentencing Act) 1988 provides:

   If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates. [3]

   [3] Police v Golding  (1999) 30 MVR 193; Hermel v Police (2000) 76 SASR 336; Sideris v Police (2001) 33 MVR 472; Coombs v Police [2001] SASC 87.

10. In this matter the magistrate erred in his application of section 18A of the Sentencing Act. He purported to impose a $700 fine for both offences but then separately imposed a licence disqualification for the section 47B offence. This was an incorrect application of section 18A. Having invoked section 18A the magistrate was only authorised to impose the one sentence for both offences. This error of approach by the magistrate requires this Court to reconsider the penalty.

11. The magistrate’s starting point when considering the length of the licence disqualification was 16 months.  He then made a reduction of four months on account of the pleas of guilty.  This was the appellant’s first offence of drink driving.  Despite the high reading, 0.149, when regard is had to the appellant’s favourable antecedents the magistrate’s notional starting period of 16 months was manifestly excessive, and as a consequence so was the disqualification of 12 months.

    Consideration of penalty

12. As earlier observed this was the appellant’s first “drink driving” offence.  Apparently he did not on this occasion follow his normal practice of taking a taxi home as he was apparently concerned about threatening behaviour.  This account may provide an explanation as to his conduct but it does not provide an excuse.  The appellant had other alternatives available.  His home was within walking distance from the tavern.  Mr Oliver is forty-seven years of age and separated with one child.  At the time of the offending he was self-employed as a boilermaker and used his vehicle in the course of his work.  Since Mr Oliver’s driver’s licence has been disqualified, he has hired a driver to enable him to attend to his business.

13. In fixing penalty regard has been had to the circumstances of the offending, the appellant’s personal antecedents and to his explanation for his conduct.

14. This appeal is allowed. The penalty imposed by the magistrate is set aside. On the count of failing to give way a conviction is recorded and a fine of $300 imposed. On the count of driving with an excess of alcohol in his blood contrary to section 47B a conviction is recorded, a fine of $400 imposed and an order is made disqualifying the appellant from holding or obtaining a driver’s licence for a period of nine months. The order of disqualification is backdated to commence on 13 October 2003. The appellant is to pay court fees of $130.20, two levies of $35 each and prosecution costs of $16.