PAULL v Police

[2007] SASC 449

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

PAULL v POLICE

[2007] SASC 449

Judgment of The Honourable Justice David (ex tempore)

6 December 2007

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE

Magistrates appeal - appeal against sentence - appeal filed out of time - application for extension of time - offences of drink driving and dangerous driving - guilty plea - previous conviction for drink driving - disqualified from driving for three years and fined $2,000 - whether manifestly excessive.

Held:  Appeal dismissed - extension of time allowed - penalty not manifestly excessive.

Supreme Court Civil Rules 2006 s 290(1)(a), referred to.

PAULL v POLICE
[2007] SASC 449

Magistrates Appeal:  Criminal

DAVID J. (ex tempore)

Introduction

1. This is an appeal against a penalty imposed by a magistrate on 16 July 2007. The appellant appeals on the ground that the penalty imposed is manifestly excessive.

   Extension of Time

2. The appeal was filed out of time and the appellant therefore seeks an extension of time. Rule 290(1)(a) of the Supreme Court Civil Rules 2006 provides this Court with discretionary power to grant an extension of time. The appellant was unrepresented in the lower court. He has filed an affidavit stating that he works at Olympic Dam and this has made it difficult for him to obtain legal advice. In these circumstances, I am minded to exercise my discretion to grant an extension of time.

   Background

3. The appellant was charged with driving with the prescribed concentration of alcohol in his blood, and driving a motor vehicle in a culpable and negligent manner, or recklessly, or with speed, or in a manner which was dangerous to the public, with the intention of escaping pursuit by a police officer. The appellant’s blood alcohol level was .107 grams per 100 millilitres and this, it is agreed, was a subsequent offence.

4. As previously stated, the appellant appeared unrepresented. He indicated that he wished to plead guilty to the two charges. The magistrate advised the appellant that the matter could be adjourned to enable him to obtain legal advice. The magistrate also warned the appellant that, should he plead guilty, he may be disqualified from driving for a lengthy period of time, but he did not indicate what period of time this might be or what the minimum periods were. The appellant declined to seek legal advice and pleaded guilty to both offences.

5. The magistrate imposed a fine of $2,000 in respect of the offence of driving with the prescribed concentration of alcohol and disqualified the appellant from driving for one year, the minimum penalty which could have been imposed.

6. In respect of the offence of driving to escape police pursuit, the magistrate disqualified the appellant from driving for two years, again the minimum penalty which could have been imposed. The magistrate determined that the two disqualifications should run cumulatively rather than concurrently.

   Appeal

7. The appellant is currently employed as a fitter at Olympic Dam. In the course of his employment, he drives mining equipment such as cranes. To drive this equipment, he is required to hold a driver’s licence. He argues that this makes licence disqualification a particularly harsh penalty. His argument seems to be, before me, that the two minimum licence disqualifications which were imposed should not have been cumulative, but concurrent, and if this was explained to the magistrate with the benefit of counsel, it may have affected the magistrate’s decision whether to run the disqualifications cumulatively or concurrently.

8. The magistrate imposed the minimum penalty for both offences. While it was open to the magistrate to make the periods of disqualification run concurrently, in my view, he, having considered the matters, has not fallen into error for failure to do so. These offences, although occurring basically at the same time, are quite separate. The driving for which the appellant has been penalised involved travelling at speeds of up to 80 kilometres per hour while the police were in pursuit, obviously with a clear intention of avoiding arrest. In doing that, at least one vehicle was embarrassed and had cause to pull over, contact was made with a kerb, his car got out of control, ending up mounting a footpath and colliding with a retaining wall. It is clear that the charge involved dangerous driving totally divorced from the fact that he was driving with more than the prescribed concentration of alcohol in his blood. In other words, the two offences were quite separate.

9. Even taking into account the effect the licence disqualification will have on the appellant’s employment, in my view, the magistrate’s sentencing discretion in making periods of disqualification cumulative was appropriate. The only extra information that could have been supplied to the magistrate, which have allowed to be put before me, is contained in the affidavit of the appellant and especially paragraph14 of that affidavit. In my view, that material would not have made any difference to the exercise of the magistrate’s discretion.

   Conclusion

10. I dismiss the appeal.