Police v Federuzzi

[2008] SASC 104

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v FEDERUZZI

[2008] SASC 104

Judgment of The Honourable Justice David

24 April 2008

TRAFFIC LAW - OFFENCES - PROCEDURE - SENTENCE

Crown appeal against sentence - whether "proper cause" existed for reducing demerit points to zero, pursuant to s 98B(4) of the Motor Vehicles Act 1959 (SA).

Held: No "proper cause" - appeal allowed.

Magistrates Court Act 1991 (SA) s 42; Road Traffic Act 1961 (SA) s 47A, s 47B(1)(a); Motor Vehicles Act 1959 (SA) s 98B(4), referred to.
Gilbert v Owen (1991) 14 MVR 235; Kramer v Morris (1975) 11 SASR 305; McCade v Chandler (1984) 37 SASR 477; Portellos v Police (Unreported SASC, Perry J, 5 August 1996); Thorley v Police (Unreported SASC, Perry J, 16 December 1997); Zanker v Hyndman (1990) 11 MVR 224, applied.

POLICE v FEDERUZZI
[2008] SASC 104

Magistrates Appeal

DAVID J. 

Introduction

1. This is a prosecution appeal against sentence, pursuant to s 42 of the Magistrates Court Act 1991 (SA).

2. The respondent pleaded guilty to exceeding the prescribed concentration of alcohol contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA). The magistrate imposed a conviction and a fine of $100, and, pursuant to s 98B(4) of the Motor Vehicles Act 1959 (SA) (“the MVA”), made an order reducing the demerit points from three down to zero.

3. The prosecution appeal the decision of the magistrate to reduce the demerit points to zero. Section 98B(4) of the MVA provides that a court may order a reduced number of demerit points, or no demerit points, if it is satisfied by evidence on oath that the offence is trifling, or that any other proper cause exists.

   Background

4. On 30 March 2007, the respondent drove a motor vehicle on Prospect Road, Kilburn and was pulled over at a Random Breath Testing station.  The respondent submitted to an Alcotest and recorded a positive reading. He then submitted to a Blood Alcohol test and it was found that the concentration of alcohol present in his system was 0.075 G in 100 Ml of blood.

5. At the hearing in the Holden Hill Magistrates Court on 5 February 2008, the respondent explained that he had been at work until 1.00 pm, and had then gone to a hotel to celebrate a fellow employee’s birthday. He was pulled over by police officers at the Random Breath Testing Station at 4.43 pm. On cross‑examination, the respondent admitted he had told police that he had consumed five beers over the three and a half hours he was at the hotel.

6. The magistrate questioned the respondent as to the impact of the possible licence disqualification on his livelihood. The respondent stated:

   Well, my licence is my livelihood. I need it to get around my tools. I take my kids to school. My wife starts work at five in the morning, so I take my kids to school as well.

   In his remarks on penalty, the magistrate stated that “the penalty suffered by the defendant in these circumstances far outweighs the seriousness of the offence.” He detailed the hardship that the respondent and his family would suffer were his licence disqualified, and then reduced the demerit points that would normally be incurred to zero.

   Ground of Appeal

7. The appellant argues that the magistrate did not expressly state in his reasons the basis on which he acted to reduce the demerit points down to zero.

8. Section 98B(4) of the MVA provides:

   If a court by which a person is convicted of an offence is satisfied by evidence given on oath forthwith on conviction that the offence is trifling, or that any other proper cause exists, it may order that a reduced number of demerit points, or no demerit points, are incurred by the person in respect of that offence.

   It is not explicit in the magistrate’s remarks on penalty whether he thought that the offence was trifling, or whether he was of the view that any other proper cause existed to reduce the demerit points.

9. It is well established that offences may be considered trifling if they are purely technical or causal. Similarly, an offence will not be considered trifling if it is a typical offence of the class prescribed.[1]

   [1]    Thorley v Police (Unreported SASC, Perry J, 16 December 1997); McCade v Chandler (1984) 37 SASR 477.

10. However, in his remarks on penalty, the magistrate stated that “this is a typical offence; there is nothing unusual about it.” This suggests that the magistrate did not find the offence trifling.

11. In relation to finding whether any other proper cause exists, Gilbert v Owen[2]  demonstrates that:

    The proper cause … must relate to the circumstances of the offence rather than the offender … aspects relevant for consideration may include the fleeting nature of the offence in very light traffic conditions, the non-embarrassment of others … the need to exercise a rapid judgment in a particular situation …

    [2] (1991) 14 MVR 235.

12. Olsson J held in McCade v Chandler[3] that the impact of potential disqualification on an offender was not of itself a proper reason for reducing demerit points.

    [3] (1984) 37 SASR 477, 479.

13. The cases of Zanker v Hyndman,[4] Portellos v Police[5] and Kramer v Morris[6] go further by holding that the fact that a person will suffer hardship from the recording of the demerit points does not amount to proper cause.

    [4] (1990) 11 MVR 224.

    [5]    (Unreported SASC, Perry J, 5 August 1996).

    [6] (1975) 11 SASR 305.

14. The magistrate noted in his remarks that at the time of the offence the traffic was medium, there was no emergency and no need for the respondent to rush home. He detailed the impact that the licence disqualification would have on the respondent’s livelihood and that of his family.

    Conclusion

15. It is clear that the magistrate relied heavily on the circumstances of the offender in deciding to reduce the demerit points to zero. Given the above authorities, in my view, the magistrate erred in placing too much weight on the hardship of the offender, rather than the circumstances of the offence itself.

16. The offence was typical, as the respondent had gone from work to a hotel, had consumed alcohol and then been apprehended whilst driving home. There was no good reason for him driving home, there was no emergency, nor were the traffic conditions light. The offence was actually on the higher end of the scale, as the respondent’s blood alcohol reading was just below the 0.08 G in 100 Ml of blood limit for a category 1 offence as defined in s 47A of the Road Traffic Act. Given these facts, there does not appear to be any “proper cause” as defined by the authorities to reduce the demerit points to zero.

17. I would allow the appeal. I rescind the order of the magistrate reducing the demerit points from three to zero. In all other respects the penalty will remain, namely a fine of $100. There will be an incursion of three demerit points.