Police v Koolmatrie No. Scciv-01-1631

[2002] SASC 47

POLICE  v  KOOLMATRIE
[2002] SASC 47

Magistrates Appeal
Nyland J

1. This is a Crown appeal against sentence but relates only to the order made with respect to the length of the period of disqualification for driving offences.  The respondent was charged on complaint that on 23 June 2001 at Mount Gambier in the State of South Australia he drove a motor vehicle on a road namely Crouch Street whilst he was not the holder of an appropriate licence, contrary to s 74 of the Motor Vehicle Act 1959. The second count alleged that on the same date and at the same place, on leaving a roundabout more than halfway around it, did not give a right change of direction signal, contrary to Rule 113(2) of the Australian Road Rules. The final count alleged that on the same date at Crouch Street North, there was present in the respondent’s blood the prescribed concentration of alcohol as defined in s 47A of the Road Traffic Act 1961 (“the Act”) and contrary to s 47B of the Act. It was further alleged in the complaint that the concentration of alcohol was 0.244 grams in 100 millilitres of blood.

2. The matter came on for hearing before a stipendiary magistrate in the Magistrates Court at Murray Bridge on 7 November 2001.  The respondent pleaded guilty to all three counts.  The circumstances of the respondent’s offending are set out in the affidavit of Philip Capper, police prosecutor, sworn on 21 December 2001.  In paragraph 3 of that affidavit, he said that although he could not now recall exactly what he said, he believed he would have said the following:

   “Your Honour, police state at about 10:20  pm on 23 June 2001 they were on uniform mobile patrol travelling north on Crouch Street North, Mount Gambier approaching the St Martins Drive roundabout.  Police observed a blue Ford sedan, SA registration SLO-508 also travelling north on Crouch Street North just ahead of the police vehicle.  The Ford had no indicator illuminated on the approach to the roundabout and once it began turning right.  The Ford continued to turn right still with no indication and then proceeded to leave the roundabout and go south on Crouch Street North, still without any indicators illuminated.  Police then stopped the defendant at this location and had a conversation with him before submitting him to an alcotest.  The defendant furnished a positive result and was conveyed to Mount Gambier Police Station.  At about 10:50pm that night the defendant submitted to a breath analysis which indicated a blood alcohol level of 0.244.  The defendant’s speech, walking and general appearance was that of some one only slightly affected by alcohol at the most.  Police then arrested the defendant, had further conversation with him and the defendant was charged.

   The defendant stated he had been drinking alcohol steadily for 3 days.  He stated he had been drinking mostly sweet sherry but didn’t know the exact amount.  He said it was not unusual for him to drink 15 litres of wine a day.  He had been eating and sleeping normally for this 3 day period.  He thought his licence was current so did not know he was driving unlicensed. He did not feel drunk at the time of having the breath analysis test.”

3. The prosecutor thereafter informed the court that the respondent had previously appeared at the Magistrates Court at Murray Bridge on 16 May 2001 on a charge of Driving Under the Influence, that offence having been committed on 14 February 2001.  On that occasion the respondent was convicted, fined the sum of $700 and had his licence disqualified for the minimum period of 12 months.  The magistrate acceded to a request from counsel that, in view of the respondent’s family commitments, the disqualification be deferred to commence on 2 January 2002. 

4. Mr Fouyaxis was counsel for the respondent at the hearing in the Magistrates Court.  In his affidavit sworn on 29 January 2002, he said that he made the following submissions to the magistrate:

   “10.I said the defendant was then living in a rural area, near Mannum or Tailem Bend.

   11.I said the defendant had several children who were dependant (sic) upon him.

   12I said the defendant would be affected by a long loss of licence because of the inability to drive in the areas where he and his children live.

   13.I said the defendant had been disqualified from driving from a date beginning in January 2002.

   14.I said the defendant had been making arrangements to sell the car he owned so that he would not be tempted to drive during the impending period of disqualification.

   15.I said the defendant had begun making arrangements for counselling for his alcohol dependency.

   16I said that the defendant had begun the process of removing his dependency by abstaining from alcohol.

   17.I submitted that the disqualification period should begin in January 2002.”

5. The learned magistrate then delivered some ex tempore remarks on sentence.  As they are relatively brief I set them out in full:

   “I take into account everything that has been said to me today including the fact that you have taken steps to control your drinking.  This is your second drink driving offence within a five year period.

   Given your family circumstances and the fact that you live in the country I will impose the minimum licence disqualification of three years.  You are fined the sum of $1,500.  I am prepared to order that the disqualification period commence on 2 January 2002 concurrent with another period of disqualification.  I want to encourage you to cut back on your drinking and in my view three years disqualification in total is adequate.”

6. Mr Grant, who appeared for the appellant on the hearing of the appeal, submitted that the period of licence disqualification imposed by the learned magistrate was manifestly inadequate, being the minimum period provided for a second offence of the type charged, that is, a category 3 offence under the Act. He pointed out that the respondent had been extended a particularly long period of grace before the first period of disqualification came into force. Notwithstanding that matter, he had committed the present offence by driving at almost five times the legal limit only about five weeks after his appearance in court on the earlier offence. Mr Grant further submitted that the magistrate had erred in ordering the second period of licence disqualification be served concurrently with that imposed on 16 May 2001 as this effectively resulted in no disqualification having to be served for the later offence of driving under the influence of liquor.

7. Section 47B of the Act provides that the disqualification prescribed by the Act cannot be “reduced or mitigated in any way or be substituted by any other penalty or sentence”. In Police v Nowak (2000) 76 SASR 551, the court considered an appeal in which a magistrate had ordered two periods of disqualification for separate driving offences be served concurrently. The Crown conceded, however, that s 47B(3)(b) did not deprive the court of the power to decline an order under s 169A that the second period of disqualification be cumulative on the first and the Full Court was prepared to act on that concession without finally concluding the correctness of that approach.

8. In light of the concession made by the Crown in Nowak, the appellant did not seek to argue in this case that the procedure adopted by the magistrate had offended s 47B. Instead he submitted that the circumstances of this offending demonstrated a clear disregard for the law which required a longer period of disqualification which should be made cumulative upon the earlier one. There had therefore been a miscarriage in the sentencing discretion which required this court to interfere.

9. Mr Gaite, who appeared for the respondent on the hearing of the appeal submitted, however, that the learned magistrate had properly taken into account all relevant matters and had given proper regard to the personal circumstances of the respondent which included steps taken to stop his drinking.  By fixing a shorter period of disqualification than might otherwise have been imposed, the learned magistrate was encouraging the respondent to take further steps towards rehabilitation and as such that was a proper exercise of the sentencing discretion.

10. It is well established that one of the functions of a sentencing court is to take into account the possibility of the rehabilitation of an offender.  This must, however, be balanced against the deterrent aspect of punishment.  The circumstances of the offending in this case were serious and, in my view, were aggravated by the short period of time between the commission of the first and second offence.  The respondent was extended considerable leniency on the first occasion on which he appeared before the court by being permitted a period of over six months before the licence disqualification came into operation.  During that period of grace he committed the present offence which included an extremely high alcohol breath analysis reading.  The respondent thereby demonstrated a blatant disregard for the law which, in my view, reduced the scope for leniency to be extended to him.  In my opinion, the learned magistrate in exercising his discretion to order that the two periods of licence disqualification be imposed concurrently has fallen into error and he has imposed a licence disqualification which was manifestly inadequate in all of the circumstances.

11. In my opinion, the appeal should be allowed.  I do not propose to interfere with the period of disqualification fixed by the magistrate for the second offence, notwithstanding that it is the minimum period prescribed by the legislation.  I would, however, quash the order that the periods of disqualification be served concurrently.  I order that there be a period of disqualification of three years for the offence committed on 23 June 2001 which will commence at the expiration of the period of disqualification imposed on 16 May 2001.