Police v Berzins

The Police appealed against a sentence imposed by a Magistrate on the respondent, Mr Berzins. Mr Berzins had pleaded guilty to driving a motor vehicle without authorisation, contrary to section 74(2) of the *Motor Vehicles Act 1959* (SA), and to aggravated driving without due care, contrary to section 45(2) of the *Road Traffic Act 1961* (SA). The latter offence was aggravated by a blood alcohol reading of 0.155 grams of alcohol in 100 millilitres of blood. The Magistrate had applied section 18A of the *Criminal Law (Sentencing) Act 1988* (SA) to impose a single penalty for both offences, consisting of a $500 fine and a three-month and 19-day driver's licence disqualification. This resulted in a total disqualification period of 10 months, as Mr Berzins had already been disqualified for six months and 19 days prior to sentencing.

The appeal raised three key legal issues for determination by the Full Court of the Supreme Court of South Australia. Firstly, whether the Magistrate possessed the power to impose a fine in lieu of a term of imprisonment for the aggravated offence of driving without due care. Secondly, whether the penalty imposed by the Magistrate was manifestly inadequate. Thirdly, whether it was appropriate for the Magistrate to have utilised section 18A of the *Criminal Law (Sentencing) Act* in the circumstances of this case.

The Court rejected the contention that section 18A of the *Criminal Law (Sentencing) Act* should be construed to deny a court the power to impose a fine when such a penalty might be suitable and appropriate. The Court reasoned that common sense suggested such a restrictive outcome was not intended by Parliament. It was considered that if a court could proceed without imposing imprisonment, it would be absurd to restrict its power to imposing only a bond and to exclude the power to impose a fine. The Court referred to *Johnson v Police* [2011] SASC 63, where Sulan J had considered the availability of section 18A to impose a fine in lieu of imprisonment for an offence where only imprisonment was prescribed. Sulan J had concluded that section 18A was applicable, allowing for a fine to be imposed in addition to a mandatory licence disqualification, and that the section should be construed beneficially. The Full Court agreed with this approach, finding that a commonsense reading of section 18A effectively separated the sentence for licence disqualification from the wording of subsection (a) which referred to "imprisonment only".

The Court found that the Magistrate had the power to impose a fine in lieu of imprisonment for the aggravated driving offence and that the application of section 18A was appropriate. The appeal was dismissed.