Police v Godwin - [2011] SASC 222

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v GODWIN
[2011] SASC 222
Judgment of The Honourable Justice Gray
9 December 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - OTHER OFFENCES
Police appeal against sentence - defendant pleaded guilty to a charge of driving without due care, aggravated as there was present in the defendant's blood a prescribed concentration of alcohol - where a statutory minimum driver's licence disqualification of six months was applicable - Magistrate imposed minimum six months disqualification - complained on appeal that the period of licence disqualification was manifestly inadequate - whether Magistrate in error in imposing statutory minimum disqualification.
Held: appeal dismissed - Magistrate imposed a penalty within her sentencing discretion - the circumstances justified the Magistrate adopting an approach that offered leniency and mercy - a distinction is to be drawn between the case of a person driving with excess alcohol in their blood and a person who knowingly drives with a want of due care knowing that they are affected by alcohol, the latter circumstances warranting a heavier penalty than the former - while the latter might generally attract more than the statutory minimum licence disqualification, there will be cases where the overall circumstances may allow a sentencing court to impose the statutory minimum.
Criminal Law (Sentencing) Act 1988 (SA) s 18; Road Traffic Act 1961 (SA) s 45, s 47A and s 47B, referred to.
Police v Berzins [2011] SASCFC 146, considered.

POLICE v GODWIN
[2011] SASC 222
Magistrates Appeals
GRAY J:

This is a police appeal against sentence.
The defendant and respondent, Michael Keith Godwin, pleaded guilty to a charge of driving without due care contrary to section 45 of the Road Traffic Act 1961 (SA). The offence was aggravated as there was present in the defendant’s blood a prescribed concentration of alcohol – 0.133 grams of alcohol in 100 millilitres of blood. The Magistrate exercised her powers under section 18 of the Criminal Law (Sentencing) Act 1988 (SA) and in lieu of imposing a term of imprisonment, ordered that the defendant undertake 50 hours of community service. In addition, the defendant was ordered to pay a little more than $1000.00, being an impounding fee, a prosecution fee and a victims of crime levy.
The Magistrate disqualified the defendant from holding or obtaining a driver’s licence for a period of one month and five days. In making this order the Magistrate had regard to the fact that the defendant at the time of the offence was subjected to an instant loss of licence and that at the time of sentencing, he had been disqualified for a period of four months and 25 days. As a consequence, the defendant was disqualified for a total of six months.
When sentencing, the Magistrate remarked:
…You come before this Court with an unblemished record. You have indicated remorse, you are a productive member of the community, you have already paid a price in relation to this in terms of not being able to be promoted in your workplace and your partner has also paid a price in relation to not being able to have increased hours of work as a result of supporting you during this period.
In relation to the period of disqualification I take into account the instant loss of licence from 22 January 2011 which is 4 months and 25 days and I impose a further period of 1 month and 5 days making a total of 6 months licence disqualification. For that 1 month and 5 days do not get behind the wheel even for an emergency because it is a serious offence if you wilfully disregard a Court imposed period of disqualification and it can involve imprisonment. In relation to the monetary penalty I note from your counsel that you would prefer to do community service so in light of that I order that the community service that you undertake will be 50 hours and that will be over a period of 12 months. That can be through the special needs program at Edwardstown if necessary. There is also an excellent program here at the Noarlunga office an they are also open on a Saturday so that is an option that is available to you. There is an impounding fee that I have to order of $848.20. The Court fees are waived but there is a victims of crime levy of $160 that I am not allowed to waiver and $25 prosecution fee.
The offending occurred at or about 7:30pm on 22 January 2011 at the esplanade at Aldinga Beach. Police on uniform patrol observed the defendant reverse his motor vehicle out of a car park and then drive on the incorrect side of the road. As the defendant crossed into the correct lane, he “cut off” another vehicle, causing that other vehicle to swerve to avoid a collision. Immediately following the incident, the defendant was served with a notice advising of the instant loss of his driver’s licence for a period of 12 months. When spoken to by the police, the defendant acknowledged that he had been drinking full strength beers from the mid-afternoon. He knew that he was affected by alcohol and acknowledged that he had made a stupid decision to “get behind the wheel”.
At the time of sentencing the defendant was 37 years of age. He has a wife and two young children aged seven and five. He is a first offender with, as the Magistrate observed, “no priors whatsoever”. At the time of his arrest, he was apologetic and readily acknowledged his wrongdoing. The Magistrate considered that he was both contrite and remorseful and well aware of the harm that could have been caused to others by his conduct.
The defendant is a qualified tradesman. He had for some time been resident with his family in Port Lincoln working on tuna fishing boats as a commercial diver repairing tuna pens. He sustained a serious back injury while engaged in this work that required major surgery and a long process of rehabilitation. He has been left with some disability and constant back pain. As a consequence of his injuries, he relocated with his family to suburban Adelaide. He had the good fortune to come into contact with the supervisor of his apprenticeship. This led to his obtaining employment in Adelaide. Since the loss of his licence, he has been able to continue in that employment with the help of his wife. She reduced her hours of work so that she could drive the defendant to work and at times, from place to place. A letter of reference tendered to the Court from the defendant’s employer evidenced his good character. As a consequence of his loss of licence, the defendant has missed the opportunity for a promotion. The reference concludes with the statement “[the defendant] is a man of honour who I would describe as fiercely competitive and extremely loyal, he is disappointed and embarrassed that he has let his family and employer down”.
The reduced working hours of the defendant’s wife and of the loss of the opportunity for promotion have caused financial hardship to the defendant and his family. They have been unable to sell their home in Port Lincoln and have to meet mortgage payments. It has not been possible to lease the property. For these reasons the defendant urged the Magistrate to order community service rather than impose a fine. The Magistrate accepted this submission.
When the appeal by the police was lodged, it was complained that the Magistrate had acted beyond power in purporting to exercise powers under section 18(a) of the Sentencing Act. Since the lodging of the appeal, the Full Court has delivered its decision in Berzins.[1] That decision has made it clear that the Magistrate had jurisdiction to act in the way that she did. The police abandoned this ground of appeal. However, the police pressed the other ground of appeal that the period of the licence disqualification was manifestly inadequate. Before coming to discuss this complaint, it is convenient to set out the relevant statutory provisions. Section 45 of the Road Traffic Act relevantly provides:
[1] Police v Berzins [2011] SASCFC 146.
Careless driving
(1)     A person must not drive a vehicle without due care or attention or without reasonable consideration for other persons using the road.
(2)     If a court convicts a person of an offence against this section that is an aggravated offence, the following provisions apply:
(a)     the maximum penalty for the offence is 12 months imprisonment; and
(b)the court must order that the person be disqualified from holding or obtaining a driver's licence for such period, being not less than 6 months, as the court thinks fit; and
(c)the disqualification prescribed by paragraph (b) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence.
(3)     For the purposes of this section, an aggravated offence is—
(a)     an offence that caused the death of, or serious harm to, a person; or
(b)     an offence committed in any of the following circumstances:
…
(iii)the offender committed the offence while there was present in his or her blood a concentration of .08 grams or more of alcohol in 100 millilitres of blood;
…
Section 47B of the Road Traffic Act relevantly provides:
Driving while having prescribed concentration of alcohol in blood
(1)     A person must not—
(a)     drive a motor vehicle; or
(b)     attempt to put a motor vehicle in motion,
while there is present in his or her blood the prescribed concentration of alcohol as defined in section 47A.
Penalty:
(a)     for a first offence—
(i)    being a category 1 offence—$1 100;
(ii)being a category 2 offence—a fine of not less than $900 and not more than $1 300;
(iii)being a category 3 offence—a fine of not less than $1 100 and not more than $1 600;
…
(3)     Where a court convicts a person of an offence against subsection (1), the following provisions apply:
(a)the court must order that the person be disqualified from holding or obtaining a driver's licence—
(i)    in the case of a first offence—
(AA)being a category 1 offence—for such period, being not less than 3 months, as the court thinks fit;
(A)being a category 2 offence—for such period, being not less than 6 months, as the court thinks fit;
(B)being a category 3 offence—for such period, being not less than 12 months, as the court thinks fit;
…
(b)the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than one month;
(d)if the person is the holder of a driver's licence—the disqualification operates to cancel the licence as from the commencement of the period of disqualification;
(e)the court may, if it thinks fit to do so, order that conditions imposed by section 81A or 81AB of the Motor Vehicles Act 1959 on any driver's licence issued to the person after the period of disqualification be effective for a period greater than the period prescribed by that section.
…
By section 47A of the Road Traffic Act, a category 2 offence is defined as follows:
category 2 offence means an offence against section 47B(1) involving a concentration of alcohol of less than .15 grams, but not less than .08 grams, in 100 millilitres of blood;
[Emphasis in original.]
It was submitted on behalf of the police that the disqualification for a period of six months was manifestly inadequate. It was pointed out that six months was the minimum prescribed period and it was contended that a disqualification in this case of the minimum period did not adequately reflect the seriousness of the offence charged and the seriousness of the offending. Counsel placed emphasis on the want of due care, pointing out that the other vehicle in the incident had to brake heavily and sound its horn. It was further submitted that a blood alcohol concentration of 0.133 was relatively high and as acknowledged by him, the defendant had made a stupid decision to drive and was aware that he was affected by alcohol at the time.
It was suggested that the Magistrate had failed when sentencing to distinguish between the offence against section 47B(1)(a), that is the prescribed concentration of alcohol offence, and the offence of aggravated due care. It was acknowledged that both offences carried the same statutory minimum period of licence disqualification of six months. However, it was contended that the aggravated offence of due care should generally be treated as the more serious offending and particularly so in the present proceeding.
In my view this submission should be rejected. It is to be accepted that the Magistrate did not expressly refer to or distinguish between the two offences in her sentencing remarks, however it is evident from the Court record that the Magistrate was well aware of the prescribed concentration of alcohol count and that that count was withdrawn on the plea to aggravated due care. Parliament in enacting the two provisions made the deliberate decision to impose the same period of mandatory minimum licence disqualification; namely, six months. It follows that Parliament contemplated that the circumstances surrounding a charge of due care aggravated by the presence in a defendant’s blood of a concentration of 0.08 grams or more of alcohol in 100 millilitres of blood could justify a minimum licence disqualification of six months. The Magistrate had power to impose the minimum. It was within her jurisdiction to do so. The question that arises is whether the circumstances of this case would justify such an approach. Before considering this question, I wish to make a further observation.
A distinction is to be drawn between the case of a person driving with excess alcohol in their blood and a person who knowingly drives with a want of care knowing that they are affected by alcohol. The latter circumstance plainly warrants a heavier penalty than the former.
Generally, it might be expected that a driver with a blood alcohol concentration approaching three times the maximum, knowing that they are affected by alcohol, electing to drive and then doing so with a want of care would attract more than the minimum licence disqualification. Such a driver is a danger to the public and has elected to drive aware of that danger. Having said that, even in such circumstances, cases may be contemplated where the overall circumstances, including the personal circumstances of the driver, may allow a sentencing court to impose the statutory minimum licence disqualification.
I consider that the Magistrate imposed a penalty within her sentencing discretion. I accept that it was a merciful penalty, but in my view, the overall circumstances allowed for a measure of leniency and of mercy. The defendant has an otherwise unblemished record. He is well thought of by his employer and he has been able to retain his employment. He presents as a man determined to stay in employment notwithstanding ongoing back pain as the sequalae to a major injury and surgery. He is supported by his wife in these endeavours. He was open and frank with the police on his arrest and was described by the police as being apologetic. He remains critical of his own behaviour and disappointed and embarrassed that he has let his family and employer down. He is contrite and remorseful and is well aware of what could have been the severe consequences to others of his offending conduct. These circumstances justified the Magistrate in adopting an approach that offered leniency and mercy.
The appeal is dismissed.