Police v Davidson No. Scgrg-97-1314 Judgment No. S6411

[1997] SASC 6411

R  v  DAVIDSON

Magistrates Appeal

Nyland J

This is a prosecution appeal against sentence. The respondent appeared before a stipendiary magistrate in the Elizabeth Magistrates Court on 15 August 1997. He pleaded not guilty to a charge of driving a motor vehicle whilst there was present in his blood the prescribed concentration of alcohol, that concentration being .158 grams in one hundred millilitres of blood. He had been detected following a test conducted at a random breath testing station at about 7.46 pm on Saturday, 25 May 1997 at Gilbert Street, Hamley Bridge. The learned magistrate found the charge proved but thereafter invited the respondent through his counsel to make an application for the offence to be considered as "trifling", pursuant to the provisions of s47B(3)(b) of the Road Traffic Act 1961.

The magistrate, after hearing the evidence of the respondent, found that the offence was trifling.  He imposed a fine of $750 and ordered that the respondent be disqualified from holding or obtaining a driver’s licence for a period of six weeks, to commence from 12.01 am on 1 October 1997. 

The appellant has appealed on the ground that the magistrate erred in finding that the offence was "trifling". The question whether an offence is trifling is one of fact.  It is an issue which has been frequently considered by the courts.

In Mancini v Vallelonga , Mitchell J stated the principles which have been consistently applied.  Debelle J referred to that matter in South Australian Police v Hodge and South Australian Police v Hughes , and summarised some of the relevant authorities.  The considerations which are to be taken into account may be summarised as follows:

1. Whether or not the facts of the case at bar are atypical or not.  If the answer to this question is in the negative then the offence in general terms will not be considered to be trifling.

1. If an offence is found to have been deliberately committed, then it is generally unlikely that the court would find the offence to be trifling.

1. If it is a mere technical, casual or inadvertent breach and there is no deliberate intention to breach the relevant Statute it may be found to be trifling.

1. An offence might be considered trifling if the facts reveal compelling reasons of a humanitarian nature or compelling reasons for safety for doing what was in fact done.

1. In situations where there has been some form of emergency involved in events the offence may be found to be trifling.

As Debelle J said in South Australian Police v Hodge and South Australian Police v Hughes:

"... it is the circumstances of the offence which must be considered when determining whether an offence is trifling.  Any hardship which might follow to a defendant in consequence of the ordering of penalties are not relevant factors when determining whether the offence is trifling."

In Verran v Roberts , Napier J observed of the discretion to regard an offence as trifling that:

"It is impossible for Parliament to foresee and to provide for exceptional cases, and if Courts of summary jurisdiction were not entrusted with some discretion of this kind, they would frequently be placed in the dilemma of allowing a hard case to make bad law, or giving a judgment that would bring the law into ridicule and contempt.  So long as these powers are fairly used to mitigate the rigour of the law in cases which could hardly have been within the contemplation of the Legislature when the prohibition was formulated, this Court will not interfere with the discretion entrusted to the justices.  But, on the other hand, no power of this nature should be used to defeat the intention which Parliament has expressed in the Statute creating the offence, and it is the duty of this Court to see that the power is not abused."

With those precepts in mind I turn to the facts of the present case.  The respondent is employed as the operator of heavy road machinery.  He has been doing that work for approximately two and a half years.  On the day of the offence he was working in Adelaide.  He was anxious to return to his home in Hamley Bridge as his wife had been unwell.  She in fact miscarried the following day.  There had been some industrial problems at his work place relating to rosters.  The respondent was invited by his superior and another colleague to attend the Port Dock Hotel at Port Adelaide to have some discussions about those matters.  The respondent finished work at about 2.30 pm but left the hotel to return home at about 5.30 or 6 pm.  As he was leaving he telephoned his wife to check on her situation.  At that stage it was nearly dark.  He thought the drive from Port Adelaide to Hamley Bridge took about 50 to 55 minutes.  In Hamley Bridge he was stopped at a random breath testing station where he tested positive.  The respondent was surprised at the result as he did not think he had consumed sufficient alcohol to give a positive reading.  Much of the dispute at the trial appears to have related to the discussions that took place thereafter between the respondent and Constable McNamara, the officer in charge of the testing station, and the subsequent confusion as to the taking of the blood test at the Angaston Hospital.  These matters are, however, irrelevant to this issue.

The respondent in evidence at the special reasons hearing told the court that his job would be terminated if he was unable to drive.  He said he did not drink during the week.  He had been an active member of the CFS for five years.  He told the court that having attended quite a few accidents in the course of his involvement with the CFS he found it totally abhorrent that people would drive when they had been drinking.  He was genuinely surprised by the reading which occurred. 

The learned magistrate in his remarks referred to the dicta of Mitchell J in Mancini v Vallelonga (supra).  He then went on to say:

"My own view is this defendant did find himself in an unusual situation.  It wasn’t a pre-meditated long drinking session with the lads after a football match or what we usually see in these courts, namely absolute wanton disregard of duties, getting liquored up putting themselves on the roads and causing death or injury.  He had done his work that day.  He had to discuss some political problems about work.  Most people tend to do their in-depth discussions over one sort of drink or another.  He made an error of judgment.  He has never been picked up for drink driving before.  He probably has no idea how much he can drink before his over the limit.  His own view is he would not have a bar of people who drink and drive because of his work with the CFS and all of that in my view tends to meet the requirement as pronounced by Mitchell J and I find the offence is trifling".

In the circumstances of this case it is understandable that the magistrate felt a great deal of sympathy for the respondent.  All of the matters to which the magistrate referred are matters which he was entitled to take into account in determining the appropriate level of penalty.  It is clear that the loss of his licence will cause the respondent considerable hardship.  That in itself, however, is not relevant to the determination of whether the offence is trifling. 

In this case, the respondent’s blood alcohol level was .158 grams in 100 millilitres of blood.  This case therefore equates to a Category 2 offence.  The respondent does not come within that group of cases in which the blood alcohol reading is close to the minimum prescribed by Statute.  The respondent was stopped at a random breath testing station while driving his vehicle home, having consumed alcohol after work.  The respondent’s recollection of his consumption is unclear.  The respondent thought he had consumed about three to four glasses of beer but the magistrate concluded on the evidence that it was more likely to have been double that amount, or at least three to four pints, and that the respondent had been misguided in what he had had to drink. There is no doubt that the respondent was worried about his wife but there was no aspect of emergency in the situation before the court.  There is nothing unusual about the respondent having been unaware of driving with an excess concentration of alcohol in his blood.  The provisions of s47B do not require any intentional awareness about the level of alcohol and this is probably typical of persons who are tested at breath testing stations.

For all of these reasons, I consider that the magistrate erred in finding this to be an unusual situation.  The behaviour of the respondent could be described as atypical behaviour on the part of a person who drinks and then drives.  It would appear that the magistrate gave undue weight to the circumstances of hardship to be encountered by the respondent upon a period of licence disqualification of not less than six months being imposed upon him and what he understood to be the likelihood of loss of employment flowing therefrom.  Those matters are all relevant to the issue of the penalty but the hardship arising therefrom was not such as to enable the offence to be categorised as trifling. 

In my opinion the appeal should be allowed.  In view of the matters referred to by the magistrate, however, I consider this to be an appropriate case to impose the minimum penalty allowed by Statute.  In lieu of the penalty imposed by the magistrate, I impose a fine of $700, court fees of $73 and a levy of $28.  I direct that the respondent be disqualified from holding or obtaining a driver’s licence for a period of 12 months commencing from 12.01 am on 1 October 1997.