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 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.
Road Traffic Act 1961 (SA) ss 47E(1), 47E(3), 47E(6)(a), 47E(6)(b); Joint Criminal Rules 2022 (SA) r 38.2(2), referred to.
Police v Garnett [2017] SASC 125; Police v Ludlow (2008) 181 A Crim R 235; Police v Malycha (2013) 236 A Crim R 378; Police v Watson (2016) 125 SASR 212; Siviour-Ashman v Police (2003) 85 SASR 23, considered.

POLICE v GROSSER
[2022] SASC 146
Criminal
STANLEY J:
Introduction

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) (the Act), was trifling, such that it was open to impose less than the mandatory minimum 12-month licence disqualification period. For the reasons which follow, I would allow the appeal.
Section 47E of the Act
Section 47E(1)(a) of the Act relevantly provides that if a police officer believes on reasonable grounds that a person is driving, or has driven, a motor vehicle, the police officer may require the person to submit to an alcotest or a breath analysis, or both.
Section 47E(3) of the Act relevantly provides that a person who is required to submit to an alcotest or breath analysis must not refuse or fail to comply with all reasonable directions of a police officer in relation to the requirement and, in particular, must not refuse or fail to exhale into the apparatus by which the alcotest or breath analysis is conducted in accordance with the directions of a police officer. The penalty for a first offence contrary to s 47E(3) of the Act is a fine of not less than $1,100 and not more than $1,600.
Section 47E(6)(a) of the Act relevantly provides that if a court convicts a person of a first offence against s 47E(3), the court must order that the person be disqualified from holding or obtaining a driver's licence for such period, being not less than 12 months, as the court thinks fit.
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); and
4.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.
The Magistrate told counsel that she was considering how to reduce the mandatory minimum 12-month licence disqualification period for the offence of failing to submit to an alcotest and, after an adjournment, the respondent made a trifling application pursuant to s 47E(6)(b) of the Act. The respondent gave evidence on oath in support of the trifling application. The respondent said that he had not consumed alcohol on 14 April 2022. The last occasions that he had consumed alcohol was Christmas 2021. He said that he did not submit to the alcotest because he was annoyed. Under cross-examination, the respondent said that he had never previously been asked to submit to an alcotest. The respondent said that he understood that it is a requirement by law to submit to an alcotest and the only reason why he did not submit to the alcotest was because he had been arrested and he was angry about the way he had been treated by police.
Remarks on Penalty
The Magistrate said that the circumstances of the offending were unusual. Police were investigating a stolen motorbike and the motorbike that the respondent was riding was under suspicion. The respondent was riding to work when he was stopped by police in the car park adjacent to his place of employment. Police asked a question about whether the motorbike was stolen and then asked to see the respondent’s registration papers. The respondent refused to produce his driver’s licence. Despite being warned, he remained belligerent and pushed a police officer in the chest. Once the respondent was taken to ground, he was arrested and taken to the police cells where he refused to submit to an alcotest.
The Magistrate said that the respondent was aggrieved as a result of the way he had been treated particularly by the suggestion that he was riding a stolen motorbike. From that time onwards, he did not wish to comply with any further directions from police. The Magistrate noted that the prosecution did not allege that police were suspicious that the respondent had been drinking or was under the influence of alcohol or drugs. The Magistrate said that the request for a direction to submit to an alcotest may therefore have been unnecessary. The Magistrate accepted the respondent’s evidence that he had never previously been breath tested by police. The Magistrate accepted the respondent’s evidence that he drinks in moderation and only at Christmas. Despite a lengthy criminal history, the respondent had not previously come before the court for any drink driving or drug driving matters.
The Magistrate noted that the respondent was issued with an immediate loss of licence of 12 months for the offence of failing to submit to an alcotest which commenced on 14 April 2022 at 6:38 am.
In relation to the trifling application made by the respondent, the Magistrate said:
I heard evidence from the defendant. I accept his evidence. He had not been drinking nor was he under the influence of alcohol or drugs on the morning in question. He was aggrieved as to how everything went down with the police – initially suggesting that his bike was stolen; then asking for registration papers when that is not the norm; confronting him in the carpark of his workplace and arresting him. It was against that background that the defendant did not comply with the alcotest direction.
The matter is one where I consider I can invoke s 47EAA(16)(b) [sic] and find that the disqualification period can be reduced for a first offence as I am satisfied that the offence was trifling on the basis that there were other issues that arose with the police that morning. I also take into account that the defendant has not regularly been breath tested, he was aggrieved as to how he had been accused of his motorcycle being stolen and what transpired with police in his workplace carpark. Against that background, he was then subjected to an alcotest which he failed to comply with.
In the circumstances, I find the offence trifling and reduce the period of disqualification that he served from 14 April 2022 to today’s date which is 28 June 2022. His licence is to be reinstated to him to the rising of the court which will be lunch time.
The Magistrate imposed a single good behaviour bond for a period of 12 months for the offences of behaving in a disorderly manner and resisting police and a single fine of $1,100 for the offences of failing to provide personal details to a police officer on request and failing to submit to an alcotest.
Ground of Appeal
The appeal is only in relation to the offence of failing to submit to an alcotest. The sole ground of appeal advanced by the appellant is 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.
Respondent Non-Attendance
The Court proceeded to hear the appeal in the absence of the respondent or counsel acting on his behalf pursuant to r 38.2(2) of the Joint Criminal Rules 2022 (SA) (‘JCR’).
Rule 38.2(2) of the JCR provides:
(2) The Court may, where appropriate, conduct a hearing or direct that a hearing be conducted without notice to or in the absence of a party (including a party’s lawyer) if—
(a)     the party does not yet have an address for service;
(b)     the Court determines that the hearing does not affect the party;
(c)     the party has been excused from attending the hearing or, having been given notice of it, does not attend the hearing;
(d)     the hearing is to determine whether to make an interim order having effect pending a subsequent hearing at which the party may attend;
(e)     the Court determines that the risk that another party will otherwise suffer prejudice justifies that course;
(f)      the Court determines that the risk that the party will disrupt the hearing justifies that course; or
(g)     the Court determines that it is in the interests of justice to do so.
The appellant filed the notice of appeal in the Higher Courts Registry on 19 July 2022 and the respondent was personally served with the notice of appeal at his home address on 25 July 2022. The respondent did not file a notice of acting and counsel who appeared in the Magistrates Court advised that he was not instructed to act on the appeal. The Court sent a letter to the respondent’s last known address on 10 October 2022 advising that the appeal had been listed and the Court may proceed to make orders if there was no attendance by him or counsel acting on his behalf. Similarly, counsel for the appellant sent a letter to the respondent on 20 October 2022. At the hearing, my Associate called the matter to which there was no response. There was no attendance by the respondent or counsel acting on his behalf at the appeal hearing on 28 October 2022.
I am satisfied, pursuant to r 38.2(2)(c) of the JCR, that the respondent was given sufficient notice of the appeal filed by the appellant and the appeal hearing on 28 October 2022 such that it was appropriate to conduct the appeal hearing in the absence of him or counsel acting on his behalf. I am further satisfied, pursuant to r 38.2(2)(g) of the JCR, that it was in the interests of justice to conduct the appeal hearing in the respondent’s absence and in the interests of justice to proceed to make orders. By failing to file a notice of acting and attend the appeal hearing, the respondent has forfeited the opportunity to put submissions before the Court in addition to those that had been put before the Magistrate.
Trifling
The conclusion that an offence is trifling is a finding of fact. It is a characterisation of a particular state of affairs, not an exercise of discretion. Accordingly, an appeal from a finding that an offence was trifling or a finding that an offence was not 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.[1] In Siviour-Ashman v Police Doyle CJ reviewed the authorities dealing with the concept of “trifling”.[2] The following principles can be distilled from that analysis:
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 ordinary meaning must be borne in mind, namely, “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.[3]
[1] Police v Malycha (2013) 236 A Crim R 378 at [19].
[2] (2003) 85 SASR 23 at [23] – [42].
[3] Police v Garnett [2017] SASC 125 at [7].
Approach on a Prosecution Appeal
There is a substantive distinction between exposing an offender on a prosecution appeal to some form of double jeopardy in relation to a custodial sentence as opposed to a non-custodial sentence. In the latter circumstances, there is no sound reason in principle to require that a prosecution appeal should be allowed only in the rare and exceptional case. If the Magistrate has erred in the imposition of a non-custodial sentence, the appellant should not be obliged to demonstrate anything other than error on the part of the Magistrate in order for an appeal to succeed, unless it is proposed on appeal that the Magistrate erred in failing to impose a custodial sentence. It follows that the approach to be taken as a matter of principle in determining a prosecution appeal against a non-custodial sentence imposed by a Magistrate is the same approach that would be taken in relation to an appeal by a convicted person against sentence.[4]
[4] Police v Watson (2016) 125 SASR 212 at [11].
However, the issue of double jeopardy is not irrelevant to an appeal from a non-custodial sentence. There may be circumstances on appeals of the present kind in which an element of double jeopardy may be present. Although an element of double jeopardy may be inevitable whenever a Magistrate’s finding that an offence was trifling is set aside (just as it is whenever a prosecution appeal against sentence succeeds), there are particular circumstances in which the result may have harsh consequences. The Court is justified in such circumstances in dismissing the appeal. Nevertheless, when the legislature has prescribed a minimum non‑custodial penalty and there has been an error at first instance in failing to impose that penalty, it will be rare for an appellate court not to give effect to the statutory requirement.[5]
[5] Police v Ludlow (2008) 181 A Crim R 235 at [27] – [28].
Appellant Submissions

While it was conceded that this was the respondent’s first offence of failing to submit to an alcotest, the appellant submitted that the offence was not trifling. It was a typical instance of the offence. The circumstances were not unusual or exceptional. The respondent neither being, nor appearing, to be under the influence of alcohol or drugs is irrelevant and insufficient, both on its own and together with other circumstances, to render the offence trifling. The exercise of the power under s 47E of the Act to direct a person to undertake an alcotest does not require proof, or a belief, that the person may be affected by alcohol or drugs. Similarly, the offence is not of slight importance, insignificant, or of little moment as a result of the respondent’s lack of familiarity and experience with alcotests. Furthermore, the respondent was given multiple opportunities to comply with the direction and told of the consequences of failing to comply. In the circumstances, it is reasonable to infer that the offending was deliberate.
Discussion
The Magistrate ultimately expressed two justifications for finding that the offence of failing to submit to an alcotest was trifling. First, the respondent felt aggrieved by the way in which he was treated by police, particularly by the allegation that his motorbike was stolen. Second, the respondent had never previously been breath tested and police did not suspect that he was under the influence of alcohol or drugs when he was stopped.
In my view that does not constitute a sufficient basis to justify the conclusion that the offending was trifling. The circumstances of the offence 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 minimum 12 month licence disqualification period. This was a conscious and deliberate flouting of the law by the respondent who gave evidence that he understood that the law required that he submit to an alcotest but he did not do so because he felt aggrieved by the way in which he was treated by police.
In this case strong public policy considerations call for the imposition of the mandatory minimum 12 month licence disqualification period. The purpose of the offence is to deter the frustration of the police power to require people to submit to an alcotest, or breath analysis, and, ultimately, to deter those who drive motor vehicles from driving while affected by alcohol or drugs. The exercising of a power to direct people to undertake an alcotest, or breath analysis, pursuant to s 47E(1) of the Act does not require proof, or a belief, that a person may be affected by alcohol or drugs.
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.