Police v Head - [2013] SASC 185

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v HEAD
[2013] SASC 185
Judgment of The Honourable Justice Kelly
28 November 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - OTHER OFFENCES
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN BLOOD - SENTENCE AND PENALTY
Police appeal against Magistrate’s finding that the respondent’s offending was trifling – the respondent drove home from his friend’s neighbouring farm with a blood alcohol reading of 0.086 – distance to be travelled was three and a half kilometres on a dirt road little used by other traffic – respondent pleaded guilty to one count of driving with a prescribed concentration of alcohol – respondent made an application that the offending be declared trifling – Magistrate found offence to be trifling and imposed a fine of $900 with a period of one month licence disqualification.
Whether Magistrate’s conclusion that the offending was trifling was wrong.
Held: appeal allowed – Magistrate erred in finding that the offending was trifling – offending conduct was not atypical - the licence disqualification period of 6 months prescribed by the Road Traffic Act 1961 (SA) must be applied.
Road Traffic Act 1961 (SA) s 47B(1)(a), s 47B(3)(b), s 47B(3)(a)(i)(A), referred to.
Police v Malycha [2013] SASC 169; Police v Ludlow (2008) 181 A Crim R 235; Police v Mutton (2006) 246 LSJS 153; Siviour-Ashman v Police (2003) 85 SASR 23, applied.
Campbell v Fuss (1991) 55 SASR 355; Draoui v Police [2010] SASC 94; House v The King (1936) 55 CLR 499; Police v Jozinovic [2004] SASC 64, discussed.

POLICE v HEAD
[2013] SASC 185
Magistrates Appeal: Criminal
KELLY J.
Introduction

On a winter evening in July 2013 the respondent, Phillip David Head, a 55 year old farmer who lives near Crystal Brook, decided to have a few drinks with an old friend of his who lives on a neighbouring farm. Between about 4.00pm and 7.40pm he drank “two stubbies of beer and some red wine”. On his way home at about 8.30pm that night he was stopped by police on the Top Track road near its intersection with Head Road via Crystal Brook and required to submit to a breath analysis which later provided a reading of 0.086. At this point he had only driven part of the three and a half kilometre distance between his home and his friend’s place.
On 11 September 2013 the respondent pleaded guilty to one count of driving with a prescribed concentration of alcohol contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA) (“the Act”). That offence attracts a minimum period of six months driver’s licence disqualification.[1] The respondent’s solicitor made an application that the offending be declared trifling under the provisions of s 47B(3)(b) of the Act and the respondent gave evidence on oath as to the circumstances of the offence. The Magistrate ultimately found the offence trifling and imposed a fine of $900 with a period of one month licence disqualification to commence from 11 September 2013.
[1] Road Traffic Act 1961 (SA) s 47B(3)(a)(i)(A).
The police appeal against the Magistrate’s finding that the offending was trifling.
Circumstances of the offending
The facts were that about 8.30pm the respondent left his friend’s home and commenced the drive back to his own property, a distance of some three and a half kilometres. It is not in dispute that the speed at which he was travelling was approximately 40 to 50 kilometres per hour and that he had travelled about a quarter of the distance home when a police officer who was passing by on the nearby Gladstone to Port Pirie highway, observed the respondent when he was still travelling on the dirt road as it ran parallel to the highway before turning away from the highway.
Upon the hearing of this appeal the appellant tendered an affidavit sworn by the police prosecutor in the lower court. The respondent relied upon two affidavits sworn by the respondent on 5 August and 30 August 2013 respectively. Exhibited to those affidavits were a map and a number of photographs from which it is possible to gain a much clearer understanding of the topography, location, dimensions and general features of the road on which the respondent was travelling.
The road provides access to at least three properties in the area: the respondent’s, the respondent’s friend and another farmer, as well as to a small portion of Crown land. The dirt road on which the respondent was travelling intersects with a number of other dirt roads at different points along the way, including with a road known as Pipeline Road for the obvious reason perhaps that it runs parallel to a pipeline which travels through that area.
The Magistrate’s decision
The Magistrate found that the offending was atypical in that the location at which the respondent was stopped by the police was “a little used portion of road, there was no traffic on it and there was no likelihood of any traffic being on the road”. He noted that the respondent’s blood alcohol reading was very low and that that was important although by no means decisive. He found that the respondent did not have a readily available option of catching a taxi and considered that a three and a half kilometre walk would not be something which the respondent would “likely undertake”.
In the end it was the nature of the road and its location which seems to have influenced the Magistrate the most in reaching the conclusion which he did that the offending was trifling. He returned to that topic a number of times during his reasons which were delivered ex tempore:
It is certainly unlikely, as is submitted, that your driving on that road with such a blood alcohol level would lead to an accident or cause injury or damage to other road users and that is the mischief at which the legislation is addressed. Nevertheless, the legislation attracts strict liability for an act of driving with blood alcohol greater than the prescribed concentration.
…
The nature of the road, quite clearly, is that it receives little use. You were visiting your neighbour and, in the circumstances in which you live, it is analogous to a couple of neighbours who live in the same street in a suburban area. In the absence of any traffic on the little used road between your houses, your driving created little actual risk.
…
I ask myself whether this offence is a normal or typical example of its type. It is submitted that it is, but in the end, after careful consideration, I have concluded that it is atypical. It is atypical in that this was a little used portion of road, there was no traffic on it and there was no likelihood of any traffic being on the road. If there was to be any traffic on it, you would have been well aware of it because of any other vehicles’ lights. Also, your alcohol reading was very low and that is important, although by no means decisive. You did not have a readily available option of catching a taxi and a three and half kilometre walk would not be something which you would likely undertake.
The law
Section 47(B)(3)(b) of the Act provides:
47B—Driving while having prescribed concentration of alcohol in blood
…
(3)Where a court convicts a person of an offence against subsection (1), the following provisions apply:
...
(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;
…
In Police v Malycha[2] I recently reviewed a number of authorities which deal with the issue of whether an offence may be considered trifling within the meaning of s 47B(3)(b) of the Act. As I noted in Malycha, Siviour-Ashman v Police[3] remains the leading authority as to the nature of offending which may be considered trifling. I do not propose to repeat everything which I said in Malycha or to traverse again all of the authorities I referred to in Malycha, except to remind myself of the useful summary by White J in Police v Ludlow[4] of the relevant considerations identified in Siviour-Ashman and the cases which followed Siviour-Ashman on this topic:[5]
[2] [2013] SASC 169.
[3] (2003) 85 SASR 23.
[4] (2008) 181 A Crim R 235.
[5] Police v Ludlow (2008) 181 A Crim R 235 at [13].
…
(a)the word “trifling” in s 47B of the RTA is used to mean of slight importance, insignificant or of little moment;
(b)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;
(c)regard should be had to the purpose of s 47B, ie, the promotion of safe driving conditions;
(d)an offence which is a normal or typical example of its type will not be trifling. Section 47B(3)(b) must be understood as intended to deal with the unusual or exceptional case, the circumstances of which call for the usual minimum to be put to one side. Campbell v Fuss was such a case as the defendant, who had not earlier been driving the vehicle, was intending only to adjust the position in which it was parked;
(e)a lack of realisation by the defendant that he/she had or might have the prescribed concentration of alcohol is generally not relevant, but a soundly based belief falsified by events over which the defendant had no control may be relevant;
(f)a belief that circumstances exist justifying the conduct engaged in might make an offence trifling, eg, driving in necessitous circumstances to fulfil some humanitarian purpose;
(g)it has been said that when the breach is deliberate it can rarely be described as trifling but this proposition may not be applicable when the driving is for some humanitarian or other urgent purpose.
[footnotes omitted]
With those considerations in mind I turn now to the issues which arise on this appeal. The respondent contended that the Court should not interfere with the Magistrate’s finding that the offence was trifling. Counsel for the respondent submitted that the Magistrate took into account all of the correct principles, the unique factual circumstances in which the offence was committed, particularly the location of the offending, and as no error of fact or law was made this Court should not intervene.
In making that submission counsel for the respondent pointed to a number of features about the offending which were said to justify categorising the circumstances as unique or atypical for the purposes of s 47B(3)(b) of the Act. He pointed to the respondent’s low blood alcohol reading of 0.086 and to the fact that the road on which the respondent was travelling was, in effect, a service road between two properties and perhaps one other with the consequence that there was no likelihood that there would be any other traffic using the road at that time especially on a Friday evening.
He said the respondent was a man without any previous convictions who made the decision to visit his friend who was bereaved as a consequence of the recent death of his wife. The location was remote and as it was not a main road or anything like it he submitted that the combination of all these factors was sufficient to justify the Magistrate’s finding that the offending was trifling.
While minds may differ on whether the location of the road is accurately described as “remote”, it may readily be accepted that it is not one where there was likely to be any traffic at least at that hour of night and further that it is a little used road.
However, as the authorities establish, it is not the case that an absence of danger to other road users in any particular instance of driving contrary to s 47B(1) of the Act is sufficient to render an offence atypical or exceptional within the meaning of s 47B(3)(b) of the Act. Sulan J made this point in Police v Mutton.[6] He said:[7]
Section 47B of the Act was enacted to ensure that persons do not drive vehicles when their blood contains alcohol which exceeds the limits prescribed in the section. The provision makes no reference to the manner of driving, the distance over which the vehicle is driven, the amount of traffic on the road at the time, nor whether the road upon which the vehicle is being driving is a major or minor carriageway.
[6] (2006) 246 LSJS 153.
[7] Police v Mutton (2006) 246 LSJS 153 at [9].
While it might be accepted that there are different risks driving on a suburban road in a town or a city to driving on a dirt road or track in the country, I cannot accept that just because there was no likelihood of any traffic being on the road that therefore there was no risk. There are risks inherent on driving on any dirt road in the country be it a major or minor carriageway or a major or minor dirt road.
The photographs tendered reveal that this road appears to be a fairly typical example of its type, namely a dirt road connecting a number of farming properties with the nearby highway, other towns and each other. It is undulating and appears to intersect with other minor roads including Head Road and Pipeline Road at several points. In my view it is a typical example of many if not hundreds of such roads to be found in rural South Australia connecting properties to each other, to other major and minor roads and to nearby towns.
The Magistrate expressed the view that his decision was “not to be taken as any sort of endorsement that those who live in the country can simply drive whilst affected by alcohol and expect not to be punished in the way otherwise envisaged by Parliament”. However, once it is understood that this was in fact a typical country road of its type, I consider that the decision made by the Magistrate sends precisely that message to rural South Australia.
There were many features of the respondent’s offending which are not uncommon. The offence constituted by s 47B(1)(a) is not one which is necessarily always committed by recidivist offenders or hardened criminals. It is not uncommon that the offence can be committed by an ordinary member of the community who has never had a previous conviction in his or her life and who on one occasion makes an error of judgment by deciding to drive after having a few too many drinks. This was the position in which the respondent found himself on that Friday evening in July. So there is nothing atypical about that circumstance.
The respondent may well have made the decision to visit his friend who was bereaved by the recent death of his wife to provide companionship and support during a difficult period in both their lives; however it was not seriously suggested either in the court below or on appeal that a person who goes to have a drink on a Friday evening with a friend in those circumstances is driving for a humanitarian purpose within the meaning of the authorities relating to s 47B(3)(b) of the Act.
It is true that the respondent’s reading was at the lower end of the second category of offences prescribed by s 47B of the Act. That means it was neither in the least serious category or in the most serious category of offences prescribed. However there is nothing in itself atypical about that.
It is also true that this was a minor road and it does service a limited number of properties, however for the reasons I have already expressed there is nothing atypical about that either.
This is not to say that the fact that a person is travelling on a remote country road in a sparsely populated area with little traffic about might never to able to rely on that circumstance in submitting an offence was trifling but that fact standing alone is not sufficient in my view.
Nor can I accept, as the Magistrate seems to have, that there was no other practical alternative for the respondent other than getting into his car and driving home along that road for three and a half kilometres on that night. One of the obvious alternatives was for the respondent to have decided not to have drunk as many glasses of wine. Another one was for him to have waited at his friend’s house for a few hours more until sufficient time had passed for the alcohol to be eliminated. A third alternative that readily suggests itself is that the respondent might have stayed overnight at his friend’s house. Another alternative which the Magistrate does not seem to have thought much of (however the respondent agreed that he could have) was that the respondent could have walked home. The point I am making is that there was no explanation advanced which could conceivably amount to a humanitarian reason for the respondent to be driving on the road in those circumstances.
For these reasons I have concluded that there is nothing in the circumstances of the respondent’s offending, either when those circumstances are considered in isolation or taken in combination, which could possibly justify a conclusion that the respondent’s offending was anything other than typical.
For these reasons the appeal must be allowed. The order of the Court will be the finding that the offending was trifling is set aside. The order made by the Magistrate disqualifying the respondent from holding or obtaining a driver’s licence for a period of one month is set aside.
Taking into account the fact that the respondent has now served one month and 10 days, I order that the respondent’s licence be disqualified for a period of four months and 20 days.
I shall hear the parties as to what date it is appropriate to commence that period of disqualification. In all other respects the Magistrate’s orders are undisturbed.