PETERS v Police

[2008] SASC 103

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

PETERS v POLICE

[2008] SASC 103

Judgment of The Honourable Justice David (ex tempore)

15 April 2008

TRAFFIC LAW - OFFENCES - PROCEDURE - SENTENCE

Appellant pleaded guilty to driving whilst disqualified - whether speed and concentration of alcohol at time of offence to be taken into account as aggravating factors in sentencing - error conceded by respondent.

Held: appeal allowed, appellant re-sentenced.

Magistrates Court Act 1991 (SA) s 42; Road Traffic Act 1961 (SA) s 47B(1)(a); Motor Vehicles Act 1959 (SA) s 91; Australian Road Rules r 20, referred to.

PETERS v POLICE
[2008] SASC 103

Magistrates Appeal

DAVID J. (ex tempore)

Introduction

1. This is an appeal pursuant to s 42 of the Magistrates Court Act 1991 (SA). The appellant pleaded guilty in the Mount Barker Magistrates Court to:

   ·one count of exceeding the speed limit, contrary to r 20 of the Australian Road Rules;

   ·one count of driving a motor vehicle whilst there was present in his blood a concentration of alcohol of .256 G in 100 Ml of blood, contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA); and

   ·one count of driving whilst disqualified from holding or obtaining a licence, contrary to s 91 of the Motor Vehicles Act 1959 (SA).

2. In relation to:

   ·the first count - a fine of $200 was imposed;

   ·the second count - a fine of $1,500 was imposed and the appellant was disqualified from holding or obtaining a driver’s licence for a period of four years; and

   ·the last count - the magistrate imprisoned the appellant for 21 days unsuspended.

   This appeal relates to the penalty of imprisonment imposed in relation to the last count alone.

   Background

3. The magistrate set out the background facts upon which he sentenced the appellant in his sentencing remarks:

   I am told on the day before the day of these offences, Friday 26^th October 2007, you had worked for Parbury. There was a friend Steve staying at your home. After work and during Friday evening you and Steve consumed alcohol. You went to bed at a reasonable hour given you were to work for Bridge Salvage on the following Saturday morning. You went to work for Bridge Salvage early on the Saturday morning and worked for the whole of the morning. I understand that work was at Welland. At about midday you and Steve obviously went somewhere where you consumed alcohol. There was no intention to drive at the time that you were drinking the alcohol. The arrangement as I understand it was that someone else employed by Bridge Salvage would collect you and Steve and drive the both of you to Murray Bridge where Bridge Salvage is based so Steve could drop off the various time sheets for the preceding weeks work at the Bridge Salvage premises and then the two of you intended to stay overnight at Steve’s girlfriend’s home in Murray Bridge. You were to work for Bridge Salvage on the Sunday morning in the Murray Bridge area. When the other unnamed person failed to arrive to collect you and Steve it was believed there was some urgency to get those time sheets to Murray Bridge and so you decided to drive. I am told Steve did not drive because he was disqualified.

   You were driving along the freeway at 135 kilometres per hour. The suggestion is you were overtaking a truck. I note that explanation for your speed but there are in fact two lanes along the freeway and overtaking a truck just means you move into the other lane from the truck where you can still maintain the speed limit without having to drive at that ridiculously high speed. It is that speed that attracted the attention of the police officers and I have indicated the results after you were apprehended by the police officer.

   You were driving approximately 10 weeks after you had appeared in the Port Adelaide Magistrates Court and the licence disqualification had been imposed upon you. Your counsel has argued that neither the speed nor the drink driving aspect of your offending should be viewed as aggravating features. I reject that submission. They are clearly aggravating features. The fact is you were driving at a ridiculously high speed on a major road at a time of day when it could be reasonably anticipated there would be other people out and about using that same road at a time you had a blood alcohol reading of .256 grams of alcohol in 100 millilitres of blood and at a time that you were disqualified from driving and the disqualification had only been imposed upon you approximately 10 weeks beforehand.

   Ground of Appeal

4. The appellant submits that the magistrate took into account the speed and the ingestion of alcohol, which was the basis of the first two offences, as an aggravating factor when sentencing the appellant to a term of imprisonment for the last count. That can be clearly seen from his sentencing remarks quoted above. It is conceded by counsel for the respondent that in doing that, the magistrate fell into error. The appellant consequently submits that the sentence should be set aside and the sentencing discretion exercised afresh by this Court. I therefore allow the appeal.

   Re-sentencing

5. In re-sentencing in relation to the last count, namely the office of driving whilst disqualified, I take into account the background of facts as set out in the magistrate’s sentencing remarks. I especially take into account the fact that the appellant was not intending to drive, but circumstances were such that because of the urgency of the situation, he voluntarily decided to drive, at a later stage. The driving itself and the amount of alcohol ingested were very serious, however, the appellant has been separately punished for those two offences.

   Conclusion

6. In all of the circumstances, I am of the view that a term of imprisonment is appropriate for the last count, however, bearing in mind the situation in which the appellant was placed, the fact that he is fully employed, and that he has no previous convictions of a like nature, in the exercise of my discretion, I will suspend that sentence.

7. The sentence is that the appellant be imprisoned for 21 days, suspended upon him entering into a bond in the sum of $500 to be of good behaviour for a period of two years.