PATERSON v Police - [2006] SASC 103

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
PATERSON v POLICE
Judgment of The Honourable Justice Duggan (ex tempore)
3 April 2006
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - TESTING AND ANALYSIS PROCEDURE
TRAFFIC LAW - LICENSING OF DRIVERS - DISQUALIFICATION, AND CANCELLATION AND SUSPENSION OF LICENCES
Appeal against sentence imposed by magistrate - appellant pleaded guilty to two counts of failing to comply with reasonable directions of a police officer in relation to the taking of a breath analysis - appellant returned positive reading to alcotest - appellant refused to enter police vehicle for purpose of attending at police station for breath analysis - appellant failed to furnish adequate sample of breath during breath analysis at police station - appellant disqualified from driving for 12 months - whether offence was “trifling” under s 47E(6)(b) of Road Traffic Act - no evidence given under oath before magistrate that offence was trifling - offences were not trifling and were typical offences - Held: appeal dismissed.
Motor Vehicles Act 1959 .; Road Traffic Act 1961 s 47E, referred to.
Przybytniac v Police (1998) 100 A Crim R 196; Siviour-Ashman v Police (2003) 85 SASR 23, considered.

PATERSON v POLICE
[2006] SASC 103
Magistrates Court (ex tempore)

DUGGAN J. The appellant pleaded guilty in the Magistrates Court to two offences contrary to the Road Traffic Act1961 (“the Act”) and one offence contrary to the Motor Vehicles Act1959.
It was alleged in the first count of the complaint that, on 28 December 2004 at Glenelg, the appellant failed to comply with the reasonable directions of a police officer who required him to submit to a breath analysis.
The second count in the complaint alleged that he had driven a motor vehicle when not authorised to do so.
The third count in the complaint alleged that, on 28 December 2004 at Bedford Park, the appellant failed to comply with the reasonable directions of a police officer in relation to the taking of a breath analysis.
According to the prosecution case as it was presented to the magistrate, the appellant’s vehicle was stopped by police officers empowered to conduct random breath testing. He submitted to an alcotest which returned a positive reading. He was then told that he was required to attend at the Sturt police station for a breath analysis. The appellant refused to enter the police vehicle which was to convey him to the police station. The police officers noted that his face was flushed and his breath smelt strongly of liquor. He was argumentative.
The refusal to enter the police vehicle was the basis for the first count of failing to comply with reasonable directions. While at the police station, the appellant was told he was required to undergo breath analysis, but on three occasions he failed to furnish an adequate sample of breath. There is no suggestion that he was suffering from a medical condition at the time. The failure to furnish an adequate breath sample was the basis for the charge in the third count.
Inquiries by the police established that the appellant’s driving licence expired on 30 November 2004, hence the charge of driving a motor vehicle where not authorised to do so.
The appellant said he refused to get into the police car as he wanted to see the alcotest reading. According to the police version, he was advised on a number of occasions that the alcotest had been turned off. When asked about the driver’s licence the appellant said that he had not received a renewal form for the licence.
The appellant has no previous convictions.
Section 47E(3) of the Act provides that the penalty for a first offence of refusing to comply with all reasonable directions of the police is a fine of not less than $700 and not more than $1200. The section also provides for licence disqualification for such period as the court thinks fit, but not less than 12 months. The maximum penalty for driving without a licence contrary to s 47(1) of the Motor Vehicles Act 1959 is a fine of $1250.
The appellant was fined $80 for the offence of driving without a licence. He was fined $700 on each count of refusing to obey the directions of a police officer and disqualified from driving for 12 months in relation to each of those counts. The periods of disqualification were ordered to be served concurrently.
The appellant has appealed against the sentence, the notice of appeal states:
I’m appealing to receive my driver’s licence back due to work commitments. I work as a mechanic in the public transport industry and require my licence to test drive vehicles as well as driving to breakdown vehicles on the road. If I do not have a driver’s licence I will not be able to keep my job.
The appellant was unrepresented at the hearing before the magistrate and on the appeal.
The only way in which the court is permitted to refrain from disqualifying a defendant from driving for an offence against s 47E is pursuant to sub-section (6) of that section which provides as follows:
Sub-section (6)
Where a court convicts a person of an offence against subsection (3), the following provisions apply:
(a)    the court must order that the person be disqualified from holding or obtaining a driver's licence—
(i)     in the case of a first offence—for such period, being not less than twelve months, as the court thinks fit; or
(ii)     in the case of a subsequent offence—for such period, being not less than three years, as the court thinks fit;
(b)    the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case the court may order a period of disqualification that is less than the prescribed minimum period but not less than one month;
(d)    if the person is the holder of a driver's licence—the disqualification operates to cancel the licence as from the commencement of the period of disqualification;
(da) if Division 5A applies, the court must make an order in accordance with that Division;
(e) the court may, if it thinks fit to do so, order that conditions imposed by section 81A or 81AB of the Motor Vehicles Act 1959 on any driver's licence issued to the person after the period of disqualification be effective for a period greater than the period prescribed by that section.
In the present case the appellant did not give evidence before the magistrate and in any event, there is nothing in the material before this Court or the submissions made by the appellant today which would authorise a finding that the offences in the first and third counts were trifling.
It is clear from the wording in s 47E(6) that the discretion which may be exercised to refrain from imposing a period of disqualification is not enlivened unless there is something in the circumstances of the offence itself which would render it trifling. The consequences of the disqualification cannot provide the basis for such a finding: Przybytniac v Police (1998) 100 A Crim R 196 at 199. The offending to which the appellant pleaded guilty in relation to the first and third counts is not trivial. The offences committed in this respect are normal or typical offences of their type: Siviour-Ashman v Police (2003) 85 SASR 23 at 43.
The appeal will be dismissed.