Police v GROSSER - [2022] SASC 146

Supreme Court of South Australia
(Appeal to a Single Judge)
POLICE v GROSSER
[2022] SASC 146
Judgment of the Honourable Justice Stanley
9 December 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
MAGISTRATES - ORDERS AND CONVICTIONS - DISMISSAL, CONDITIONAL DISCHARGE OR CONVICTION WITHOUT PENALTY FOR TRIVIAL OFFENCES OR EXTENUATING CIRCUMSTANCES - RELEVANT CONSIDERATIONS - TRIVIAL NATURE OF OFFENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION - GENERALLY
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT
This is a prosecution appeal against a finding by a Magistrate that an offence of failing to submit to an alcotest, contrary to s 47E(3) of the Road Traffic Act 1961 (SA), was trifling such that it was open to impose less than the mandatory minimum 12 month licence disqualification period.
At the time of the offence, police were investigating a stolen motorcycle. On his way to work on his motorcycle, the respondent became the subject of police suspicion. Police followed the respondent and stopped to speak to him. The respondent refused to cooperate with police despite warnings of the consequences and was arrested. At the police station the respondent was directed to submit to an alcotest but refused to comply despite warnings of the consequences of refusal. The respondent was charged for this refusal as well as for other offences.
In response to the charge regarding the refusal to submit to an alcotest, an application was made in the Magistrates Court that the offence was trifling pursuant to s 47E(6)(b) of the Road Traffic Act 1961 (SA). The Magistrate agreed, granting the application. The Magistrate held the offence of failing to submit to an alcotest to be trifling on two grounds. First, the respondent felt aggrieved by the way in which he was treated by police and, second, that the respondent had never before been breath tested and that police did not suspect that at the time of the offending he was under the influence of drugs or alcohol.
The appellant’s sole ground of appeal was that the Magistrate erred in finding that the offence was trifling such that it was not open for the Magistrate to impose less than the mandatory minimum 12 month licence disqualification period.
Counsel for the appellant submitted that the offence was not trifling because it was a typical example of the offending that is intended to be proscribed.
Held per Stanley J:
1)      The circumstances of the offence and respondent do not take this offending outside the usual or typical circumstances and justify the case falling within the exception the legislature had in contemplation that justifies the reduction of the 12 month minimum licence disqualification period.
2)      The appeal is allowed.
3)      The licence disqualification period imposed by the Magistrate for the offence of failing to submit to an alcotest be set aside.
4)      The respondent is disqualified from holding or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v GROSSER

Details

AGLC: Police v GROSSER [2022] SASC 146
Case: [2022] SASC 146
Decision Date: 9 December 2022

CaseChat Overview and Summary

The appeal in Police v Grosser arose from the conviction and sentencing of the respondent for various offences, including failing to provide personal details, disorderly behaviour, resisting arrest, and refusing to submit to an alcotest. The case was heard by the Supreme Court of South Australia, which was tasked with reviewing the decision of the Magistrates Court regarding the respondent's licence disqualification period. The central issue in this appeal was whether the Magistrates Court was correct in concluding that the offence of failing to submit to an alcotest was trifling, which would have allowed for a reduced disqualification period. The appeal hinged on whether the Magistrates Court's findings were reasonably open based on the evidence presented.

The Supreme Court found that the Magistrates Court's conclusion that the offence of failing to submit to an alcotest was trifling was not reasonably open. The court emphasized that the offence of failing to submit to an alcotest is a serious matter, and the respondent's personal circumstances, while acknowledged, were not sufficient to establish that it would be unfair to impose the mandatory minimum 12-month disqualification period. The Supreme Court held that the decision to set aside the finding of the offence being trifling would cause disappointment and disruption to the respondent but was necessary to uphold the integrity of the law.

In light of the above findings, the Supreme Court allowed the appeal and set aside the licence disqualification period imposed by the Magistrate for the offence of failing to submit to an alcotest. The court ordered that the respondent be disqualified from holding or obtaining a driver's licence for a period of 12 months, less the period already served, resulting in a disqualification period of 9 months and 15 days from 9 December 2022. This decision underscored the importance of correctly applying the law and ensuring that penalties reflect the seriousness of the offences committed.

Orders

Orders of the court

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Background

Background to the litigation

Section 47E(6)(b) of the Act provides that the disqualification prescribed 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 the court may order a period of disqualification that is less than the prescribed minimum period but not less than one month.Prosecution Facts of Charge At about 5:50 am on 14 April 2022, police observed a motorbike travelling east on Jubilee Highway East, Mount Gambier. The motorbike appeared to be travelling above the speed limit. Police followed the motorbike to a carpark where it stopped. The rider of the motorbike was the respondent. Police stopped to speak to the respondent. The respondent refused to produce his licence or provide his personal details. He began yelling and swearing at police. Despite being told that he would be committing an offence if he failed to provide his personal details, the respondent not only failed to do so but continued to yell and swear (Counts 1 and 2). The respondent attempted to walk away from police but was told that he was under arrest. The respondent then turned and pushed a police officer with one hand to the chest. The respondent resisted arrest and was taken to the ground. Police were unable to remove the respondent’s arms from underneath his body due to his resistance (Count 3). The respondent was eventually placed in handcuffs and conveyed to a police station. Once at the police station, the respondent was directed to submit to an alcotest. Despite being told of the consequences of refusing to comply, the respondent refused to submit to the alcotest (Count 4). As a result of the events of 14 April 2022, the respondent was charged with the following offences:1.Failing to provide personal details to a police officer on request contrary to s 40V(4)(b)(i) of the Act;2.Behaving in a disorderly manner contrary to s 7(1)(a) of the Summary Offences Act 1953 (SA);3.Resisting police contrary to s 6(2) of the Summary Offences Act 1953 (SA); and4.Failing to submit to an alcotest contrary to s 47E(3) of the Act.28 June 2022 Hearing The respondent came before the Mount Gambier Magistrates Court on 28 June 2022. This was the first and only hearing in relation to the charges arising from the events of 14 April 2022. The respondent entered pleas of guilty to all four counts. The prosecutor advised the court of the facts contained in the Facts of Charge document, the maximum penalties for each offence, and the respondent’s criminal history. Defence counsel then made submissions in mitigation of penalty. After setting out the respondent’s personal circumstances, defence counsel turned to the facts of the offending. Counsel submitted the respondent had been travelling to work on his motorbike when he was observed by police. The carpark where he stopped was outside his place of employment. Defence counsel submitted that the police officer who spoke to the respondent in the carpark asked whether the motorbike was stolen. The respondent was offended by the accusation that the motorbike might be stolen. The respondent wanted to go to work and thought that he was being harassed by police. Defence counsel went on to make submissions about the seriousness of each offence and the detrimental effects that the offending had on the respondent.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

While the issue of double jeopardy is not irrelevant in circumstances where the respondent has presumably been driving since his licence was reinstated on 28 June 2022, I do not consider that to allow the appeal would have particularly harsh consequences such that the appeal should be dismissed. Defence counsel made submissions that being disqualified from holding a licence caused a strain on the respondent’s personal life and employment. The Magistrate accepted that the respondent was the sole bread winner in his household and his employment was tenuous without a licence. Although the decision to set aside the finding that the offence of failing to submit to an alcotest was trifling will cause disappointment and disruption to the respondent, his personal circumstances, as accepted by the Magistrate, are insufficient to establish that it would be unfair to impose the mandatory minimum 12 month licence disqualification period.Conclusion The appeal must be allowed because it was not reasonably open to the Magistrate to conclude that the offence of failing to submit to an alcotest was trifling. I would make the following orders:1.The appeal is allowed. 2.The licence disqualification period imposed by the Magistrate for the offence of failing to submit to an alcotest is set aside. 3.The respondent is disqualified from holding or obtaining a driver's licence for 12 months, less the period of two months and 15 days from 14 April 2022 to 28 June 2022 being a period of 9 months and 15 days from 9 December 2022.

Ratio Decidendi

Legal Principle Established

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