Police v Garnett - [2017] SASC 125

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v GARNETT
[2017] SASC 125
Judgment of The Honourable Justice Stanley
30 August 2017
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - TRIVIAL OFFENCES OR EXTENUATING CIRCUMSTANCES - WHAT CONSTITUTES TRIFLING OFFENCE
This is an appeal against a magistrate’s finding that an offence by the respondent contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA) was trifling. Section 47B(1)(a) provides for an offence of driving with a prescribed concentration of alcohol in the blood.
The respondent parked his car in a loading zone on Hindley Street. When he parked the car there, he intended that he would drive the car later that evening. He consumed alcohol and decided that he would probably be over the prescribed limit, and so would leave his car in the city overnight and fetch it the next day. However he moved his car so as not to violate the loading zone which would come into effect at 8am the next morning. In doing so the respondent drove the car for between 80 and 120 metres before parking the vehicle. He was subsequently apprehended by police after returning a blood alcohol reading of 0.142. The respondent pleaded guilty to the offence contrary to s 47B(1)(a) in the court below. Counsel for the respondent at first instance successfully advanced an argument that the offence was trifling, which justified the magistrate imposing a lesser period of licence disqualification than the mandatory 6 month minimum.
Held, per Stanley J:
1. The magistrate erred in finding that the offence was trifling (at [9]).
2. Appeal allowed (at [15]).
3. Magistrate’s finding that the sentence was trifling is set aside (at [15]).
4. The respondent is resentenced to be disqualified from holding a driver's licence for an aggregate period of 6 months. That being a further period of 3 months and one week, commencing at a time to be fixed after hearing submissions from the parties (at [15]).
Road Traffic Act 1961 (SA) s 47A(1), s 47B(1)(a), s 169A; Australian Road Rules r 268(4A), referred to.
Campbell v Fuss (1991) 55 SASR 355, distinguished.
Siviour-Ashman v Police (2003) 85 SASR 23, discussed.
Police v Ludlow [2008] SASC 43; Apostolakos v Police [2017] SASC 90; Police v Head [2013] SASC 185; Police v Malycha [2013] SASC 169, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Trifling"

POLICE v GARNETT
[2017] SASC 125
Magistrates Appeal: Criminal
STANLEY J:
Introduction

The respondent was charged in the Magistrates Court with one count of driving with a prescribed concentration of alcohol in the blood contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA) (Road Traffic Act), namely, a blood alcohol reading of 0.142; and one count of driving with a passenger in or on a part of the vehicle not designed for the carriage of passengers, contrary to r 268(4A) of the Australian Road Rules. The offences were alleged to have occurred on 27 February 2017 on Hindley Street, Adelaide.
The respondent pleaded guilty to both counts and made a trifling application in relation to the offence of driving with excess blood alcohol. The magistrate upheld that application. The police appeal from that conclusion.
The respondent’s evidence before the magistrate
The respondent gave evidence that on the night of the offending he drove into the city and parked his vehicle on Hindley Street in a loading zone where it was lawful to park at the time, but would become unlawful at 8am the next morning when the loading zone came into effect. He met some friends. He did not intend to drink much that night but later realised he was probably over the limit. He decided to leave his motor vehicle in town overnight and return and fetch it the following day when he was sober. However, he decided to move the vehicle from the loading zone to avoid being issued with a fine or having the vehicle towed the next morning. For that purpose he drove the vehicle in an easterly direction along Hindley Street for a distance of somewhere between 80 and 120 metres. In fact, the new location where he parked the vehicle was a “No Parking” zone.
The magistrate’s reasons
The magistrate upheld the trifling submission. He indicated that his initial impression was that the circumstances of the offending were not sufficiently unusual or atypical to fall within the meaning of “trifling”. However, after considering the reasoning of Perry J in Police v Jozinovic,[1] where a driver moved his car for a similar purpose as it was parked illegally to a position where it was legally parked, the magistrate said:[2]
In my view the fact that here, Mr Garnett mistakenly parked his car in another illegal situation does not diminish the significance of the Court’s decision in Jozinovic. Of course, in that case, the judge on appeal, the late Honourable Justice Perry, did and was at pains to note that it was a borderline decision and it is always a matter for the determination of the Magistrate. Of course, what may or may not constitute an atypical or unusual circumstance of this offence will depend very much on the facts of each application.
However, having regard to that authority and other relevant matters, it is my determination that I do accept the offending was sufficiently unusual, that is the circumstances are sufficiently unusual, to conclude that it was trifling and so the application is allowed.
[1] [2004] SASC 64.
[2] Reasons for Decision of Magistrate T. F. Forrest, 18 May 2017, AMC-17-4129 at [6] – [7].
The appeal
The police appeal against the finding that the offence was trifling. The police submit that the offending was a normal or typical example of the offence of driving with a prescribed concentration of alcohol. The offending occurred with a high blood alcohol reading of 0.142, which is an offence toward the upper limit of Category 2 pursuant to s 47A(1) of the Road Traffic Act. There was nothing uncommon about the circumstances in which the respondent found himself. His actions were conscious and deliberate. There was no emergency or humanitarian situation which required him to drive with a prescribed concentration of alcohol in his blood. The circumstances of the offending were not a trivial example of the prohibited conduct. There was nothing about the offending which suggests that it fell within Parliament’s contemplation of the circumstances of this offence which would fall within the exception justifying reducing the period of disqualification from that otherwise fixed for the offending of driving with a prescribed concentration of alcohol. The magistrate erred in concluding that the offending was trifling.
On appeal the respondent represented himself. He sought to uphold the magistrate’s conclusion, having regard to the circumstances of the offending as set out above.
Relevant principles
In Siviour-Ashman v Police[3] Doyle CJ reviewed the authorities dealing with the concept of “trifling”. The following principles can be distilled from that analysis:
[3] [2003] SASC 29 at [23]-[42], (2003) 85 SASR 23 at 27 – 31.
1.The focus of the court’s consideration must be on the conduct constituting the offence, but regard may also be had to the circumstances which explain how the offence came to be committed;
2.The word “trifling” means of slight importance, insignificant or of little moment;
3.The fact that an offence is serious does not, of itself, preclude the finding that particular instance of it is trifling;
4.A normal or typical example of the offence ordinarily will not be trifling;
5.Ordinarily, there should be a soundly based belief in the lawfulness of the impugned conduct;
6.The court must pay regard to the purpose behind the obligation to observe the statutory requirement in question; and
7.A deliberate breach would rarely be described as trifling, save in cases where humanitarian considerations or considerations of urgency arise.
The conclusion that an offence is trifling is a characterisation of a particular state of affairs. It is not an exercise of discretion. Accordingly, an appeal from a finding that an offence was trifling involves a consideration of whether that conclusion was wrong in the sense that it was not reasonably open to the magistrate, having regard to all the circumstances of the offence.[4]
[4] Police v Ludlow [2008] SASC 43 at [15]; Apostolakos v Police [2017] SASC 90 at [15].
Consideration
In my view the magistrate fell into error in concluding that this offending was trifling.
The offending was deliberate in the sense that the respondent drove his motor vehicle suspecting that he was over the legal limit at the time. His motivation for doing so was to avoid incurring a parking fine or having his vehicle towed away. While I accept that he drove only a relatively short distance, it was still a distance that could not be characterised as trivial or insignificant. This was not a case of driving the vehicle from one parking bay to an adjoining one or something similar, such as occurred in Campbell v Fuss,[5] where the driver made a minor adjustment to the parking position of the motor vehicle. He drove with a substantial blood alcohol reading. The respondent had no belief in the lawfulness of his conduct. This was not an emergency situation or one where some humanitarian consideration prevailed over the ordinary stringency of the law. The circumstances of the offending were not an unusual or atypical example of the offence. While the respondent was driving merely for the purposes of moving his vehicle to avoid incurring an infringement notice or a tow away, that does not in itself render the driving with in excess of the prescribed concentration of alcohol in his blood trifling. There were other options available to the respondent. At the very least incurring a parking fine was a better course than driving with in excess of the prescribed concentration of alcohol in his blood. The decision to do so was a matter of convenience. It reflected the sort of error of judgment which is all too common when a person is affected by alcohol.
[5] (1991) 55 SASR 355.
In my view that does not constitute a sufficient basis to justify the conclusion that the offending was trifling. The circumstances are not such as to take this offending outside the usual or typical circumstances of this offence, which would justify the case falling within the exception the legislature had in contemplation justifying the reduction of the usual licence suspension for the offence of driving with a prescribed concentration of alcohol in the blood.[6] This was a conscious and deliberate flouting of the law by the respondent who appreciated that it was likely he had in excess of the prescribed concentration of alcohol in his blood. It is important to recognise the purpose of creating the offence, which is to prevent the danger that can arise when motor vehicles are driven by persons with a prescribed concentration of alcohol in their blood.[7] This was a relatively high blood alcohol reading. Driving for a short period without evidence of immediate danger or embarrassment to other road users has not supported a finding of trifling in the past.[8]
[6]    Police v Head [2013] SASC 185 at [15].
[7]    Siviour-Ashman v Police [2003] SASC 29 at [26], (2003) 85 SASR 23 at 27.
[8]    Police v Ludlow [2008] SASC 43 at [16].
In this case the protection of the public called for the imposition of the usual minimum disqualification period.
In my view the magistrate fell into error in his reliance upon Police v Jozinovic.[9] This case is not to be decided by a minute comparison of the facts with those that existed in Jozinovic.[10] Jozinovic should be understood as very much a decision on its own facts. It does not stand for any wider proposition. As the Court recognised in Jozinovic that was a decision very much on the borderline. That being so, Perry J felt constrained from interfering notwithstanding that he considered another magistrate might well have reached a different conclusion. I note that other judges have declined to follow Jozinovic.[11]
[9] [2004] SASC 64.
[10] Police v Ludlow [2008] SASC 43 at [23].
[11] Police v Ludlow ]2008] SASC 43; Police v Malycha [2013] SASC 169.
In my view the magistrate’s reliance upon Jovinovic was misplaced. The magistrate should have adhered to his initial impression that the circumstances of this case were not sufficiently unusual or atypical to fall within the meaning of the term “trifling”.
Conclusion
I would allow the appeal. I would set aside the magistrate’s finding that the offence was trifling. I would resentence the respondent, recognising that he has already been disqualified from holding a driver’s licence for 11 weeks and five days. I would order the respondent be disqualified from holding a driver’s licence for a further period of three months and one week. This produces an aggregate period of disqualification of six months. I would hear the parties as to the time of commencement of the further period of disqualification pursuant to s 169A of the Road Traffic Act.