Police v Agg No. Scgrg-98-1383 Judgment No. S6945

POLICE v AGG
[1998] SASC 6945

Magistrates Appeal: Criminal

OLSSON J. This is a prosecution appeal against the decision of a stipendiary magistrate to postpone, until 15 February 1999, the time at which the respondent's drivers licence disqualification was to take effect. It is asserted by the appellant that there was, in the circumstances, no reasonable cause for postponing the disqualification, particularly when the respondent's personal situation was weighed against the need for specific and general deterrence for drink driving offences.
The respondent appeared before the learned magistrate at Berri on 18 September 1998. He pleaded guilty to two offences under the Road Traffic Act 1961. He admitted driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol and also failing to keep his vehicle as near as was reasonably practicable to the left boundary of the carriage way. The learned magistrate imposed a single fine of $550 in respect of both offences and disqualified the respondent from holding or obtaining a driver's licence for a period of six months, to commence at 12.01 on 15 February 1999. The fine was the minimum prescribed by the statute.
As appears from his remarks as to penalty, the learned magistrate accepted that the respondent, in his capacity as president of the Barmera Monash Football Club, had, on the night of 24 January 1998, remained at the club rooms until closing time because he was concerned for the safety of a young female manager who had only recently commenced working there. There had, apparently, been some problems experienced in the past. He also accepted that the respondent had deliberately consumed light beer as a precaution against driving over the limit; and that he did not drive in blatant disregard of the drink driving laws. As he put it, the offences were more in the nature of misjudgment on the part of the respondent. These factors led him to impose the prescribed minimum fine.
Police officers on plain clothes duty in an unmarked police vehicle observed the respondent leaving the club rooms and driving east along Dean Drive at about 40 kilometres per hour. At one point it veered significantly across the white centre line and then recovered to the correct side of the road. The police officers attempted to stop the vehicle by flashing high beam headlights on and off and pulling alongside the respondent's vehicle directing him to stop. The learned magistrate was satisfied that the respondent was concerned for his safety, because he did not, at first, realize that the occupants of the unmarked vehicle were police officers. When they held up a police ID he called out that he would stop at home up the road. The police officers then followed his vehicle to his home, where it stopped in the driveway.
The police officers approached the respondent and identified themselves. It appeared to them that he was under the influence of alcohol. The respondent was requested to submit to a blood alcohol analysis. He was conveyed to the Berri police station, where a reading of 0.117 percent was obtained.
At the time of the offences there were no other vehicles in the vicinity. It was shortly prior to 1.00 am and the weather was fine. The police officers formed the opinion that the respondent was moderately affected by alcohol.
It was common ground that, at the time of the offences, the respondent had no relevant prior convictions. He was of excellent character and was the Secretary of the South Australian Table Grape Growers Association and the South Australian delegate to the Australian parent organisation. The learned magistrate was told that it would be difficult for the respondent's wife to act as driver for the respondent during the then forthcoming, intense harvest period. The respondent lived approximately three kilometres from the vineyard where he had to work most days. As portion of the harvest activity he was involved in loading trucks with export produce at a late hour; and also had to get to the vineyard before his employees, early in the morning, to organize activities for the day.
The learned magistrate was informed that the harvest would be finalised by about the end of January 1999. He therefore set the commencement date of the disqualification period at 15 February 1999.
At the hearing the prosecutor opposed the delay of the licence disqualification for the period involved. She submitted that for the respondent to walk or ride a bike for the relatively small distance involved would not be a significant inconvenience. However, it seems to me that there was some confusion in the mind of the prosecutor as to precise distances involved. She was apparently of impression that both the respondent's home and his block were within the township of Barmera. The distance between his home and the vineyard was, in fact, of the order of about 3.5 kilometres.
The appellant contended that a postponement of the commencement of the disqualification for about five months was inappropriate and would send the wrong message to potential offenders in the community. It would not be seen, he said, as an approach constituting a real deterrent as envisaged by s47B of the Road Traffic Act. I do not accept that suggestion. A substantial period of disqualification will always constitute a significant deterrent, regardless of whether it operates immediately, or is postponed for a limited period.
In my view there are three important considerations which arise in relation to this appeal.
First, it is trite to say that, in mounting an appeal against penalty, the prosecution faces a significant hurdle.
In the course of my reasons for decision in Police v Waters (Olsson J, 23 December 1997, S6500, unreported) I had this to say:-
“I must confess, with respect, to having some difficulty in the logic of seeking to draw a conceptual distinction between cases involving a potential custodial sentence and those that do not. In each case in which there is a prosecution appeal some form of double jeopardy situation necessarily arises. Such an appeal constitutes an attack on an exercise of sentencing discretion with the object of subjecting the respondent to some greater form of sentencing detriment than that which he has been given to understand will be applied. In practical terms the outcome of a case such as that now before me can be as profound and devastating in its effect upon an offender as can be the situation where an appeal results in either the setting aside of a suspended sentence, or the substantial increase of a custodial sentence actually required to be served.
In any event, what fell from King CJ in The Queen v Osenkowski (1982) 30 SASR 212 at 212-3 ("Osenkowski") is, as a matter of appellate philosophy, pertinent to any prosecution appeal. He there commented:-
‘It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.’
It seems to me that both Cadd and Osenkowski are natural corollaries of the reasoning in the often cited decision in House v The King (1936) 55 CLR 499.   It is never enough that an appellate judge, had he or she been in the position of the primary tribunal, would have adopted a different course.   If a sentencing outcome is to be interfered with, it must appear that some error has been made in exercising the judicial discretion. It must be patent that a wrong principle has been applied, or extraneous or irrelevant matters have been taken into account, or facts have been mistaken or that some material consideration has not been taken into account.
If this is so in relation to general sentencing discretions, then even greater caution should be exercised where, within a sentencing regime, the exercise - one way or another - of a pure statutory discretion is involved.   This is amply illustrated by the approach of the Full Court in Uznanski v Searle (1981) 26 SASR 388, which also reflected on the issue of exercise of a discretion as to whether or not a conviction ought to be recorded. Some of the dicta of King CJ are directly pertinent to the instant case. Inter alia, he said:-
‘There is no doubt room for difference of opinion as to the wisdom of the way in which the discretion was exercised.   ... That does not, however, mean that there has been a wrong exercise of discretion.   If there is room for reasonable difference of opinion, it is, of course, the opinion of the Magistrate, upon whom the discretion is conferred by law, which must prevail.’
The learned Chief Justice went on to point out that magistrates have a difficult and sometimes delicate task; and discretionary powers such as that now in issue are an important part of their armoury for use in the furtherance of the ends of justice.    ‘Magistrates are to be encouraged to exercise such powers with compassion and imagination, as well as with wisdom and prudence.’
With respect, that admonition is as relevant today as it was in 1981. (See also the discussion in Concrete Constructions Group Pty Ltd v McNamara and Ors (1990) 92 ALR 427 at 434-436.)”

I adhere to what I there said.

It seems to me that, on any view, the appellant has simply not satisfied the onus which clearly lies upon it. No error of the relevant nature has been demonstrated. On the contrary, the matter to be decided was one entirely in the discretion of the learned magistrate. There were facts and circumstances placed before him which plainly entitled him to adopt the approach which he did.
Second, as Mr McGee, of counsel for the respondent, pointed out, it must firmly be borne in mind that s169a confers a wide discretion to postpone commencement of periods of disqualification. There is no limit to the period and the only qualification on exercise of the discretion is that expressed in the section itself, ie the court must be satisfied that “a reasonable cause” exists for exercising the discretion. Unlike other statutory provisions, it does not impose a requirement for the existence of special circumstances or reasons, or use other expressions to indicate that the power may only be used in extraordinary circumstances - as was sought to be argued by Mr Grant, of counsel for the appellant.
This court has said on other occasions that it is quite inappropriate for it to attempt to attach to statutory provisions practical fetters on the exercise of discretion which the legislature has not, itself, seen fit to impose. This is the more so when the legislature has, itself, spelt out a formulation of the pre‑requisite condition to the discretion arising.
The only general consideration is that which was adverted to by Napier J (as he then was) in Verran v Roberts [1938] SASR 256 at 259-260. The power granted must not be abused, or employed to defeat the clear intention of the Parliament. However, so long as it is bona fide and fairly used, in a reasonable manner, to mitigate the rigour of the law in appropriate circumstances, it is quite wrong for this Court to interfere with the discretion entrusted to magistrates.
The discretion conferred by s169a is routinely exercised, admittedly usually for modest periods of time, to alleviate short term hardship and difficulty which may be occasioned to individuals by an immediate application of a licence disqualification. There can be and are no rigid rules delineating the proper or permissible period to be granted. The sole and only touchstone must be the existence, on the material before the magistrate, of a reasonable cause for the action taken. This will normally require a focus on specific hardship or difficulty likely to be occasioned, if the deferment sought is not granted. As a matter of common sense, the longer the period of deferment in contemplation, the more cogent will need to be the circumstances justifying it. I agree with Mr Grant to the extent that a significant period of deferment would not be appropriate in a mere run-of-the-mill case with no special features.
In the instant case the learned magistrate was satisfied that a particular situation, peculiar to the respondent, had been demonstrated, so as to enliven the discretion.
Third, particularly in rural areas, due regard must be had to the local knowledge possessed by the circuit magistrate and the need for exercise by him of judgment and common sense. Whilst I agree that, in the case of an offender with a significant prior antecedent record, or where the offending in question constitutes a blatant or irresponsible breach of the law, leniency such as that extended in the present case would be inappropriate, nevertheless there must remain room for exercise of discretion to meet the justice of a particular situation.
In the instant case, it was within the discretion of the learned magistrate to recognize the particular offending circumstances, the good character of the respondent, and the significant practical, industry difficulties which he was likely to face as a consequence of the imposition of an immediate period of disqualification. I am not prepared to conclude that he fell into error in the approach which he adopted. On the contrary, it seems to me that he ought to be commended for adopting a practical approach to a difficult situation which warranted his sympathy. Whilst I agree that the period of deferment granted probably lay at the very outer edge of a judicially permissible envelope, I consider that this court ought to be very slow to interfere with the exercise of the discretion in relation to facts which he was in the best position to assess, as to their cogency and impact. This respondent dealt in an industry related to perishable goods for export and the period of deferment recognised the intense vintage period. There were rural, primary industry considerations which do not arise in an urban setting. A short term disqualification would bear very hard on the respondent.
At the end of the day I am not persuaded that it is appropriate to interfere in this case. The decision made was, in no sense, idiosyncratic and was based on facts which the learned magistrate was disposed to accept. It was those facts, and those facts alone, which warranted the approach adopted. I do not see how what was done could possibly send a wrong message to offenders generally. Whether I, myself, would have granted such an extensive period had I dealt with the matter at first instance, is beside the point.
The appeal must be dismissed.

[1998] SASC 6945

17 November 1998