Police v Ludlow

Case [2008] SASC 43

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v LUDLOW

[2008] SASC 43

Judgment of The Honourable Justice White

26 February 2008

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN THE BLOOD

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE

Respondent sentenced to fine of $700 and licence disqualification of one week following guilty pleas to three traffic offences including one count of driving with the prescribed concentration of alcohol (PCA) - appellant drove his car a short distance to a carpark for security purposes before catching a taxi home - magistrate found PCA offence trifling - whether magistrate erred in finding the PCA offence trifling - whether, if the magistrate did err, it is now unduly harsh to set aside the magistrate's order.

Held:  magistrate erred in characterising PCA offence trifling - not unduly harsh for the respondent to be re-sentenced - appeal allowed - respondent re-sentenced.

Road Traffic Act 1961 (SA), s 47IAA, s 47IAB, s 47B; Motor Vehicles Act 1959 s 136; Criminal Law (Sentencing) Act 1988 (SA), s 18A; Australian Road Rules r 39, referred to.
Siviour-Ashman v Police (2003) 85 SASR 23; Police v Mutton (2006) 246 LSJS 153; Police v Hodge (1996) 89 A Crim R 290; Verran v Roberts (1938) SASR 256; Mancini v Vallelonga (1981) 28 SASR 236; Police v Cadd (1997) 69 SASR 150, applied.
Police v Fargher [1999] SASC 206, distinguished.
House v The King (1936) 55 CLR 499; Police v Selvakulalingam [2007] SASC 424; Police v Jozinovic (2004) 40 MVR 385; Campbell v Fuss (1991) 55 SASR 355, discussed.
Williams v May [1908] VLR 605; Everett v The Queen (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168; Commissioner of Taxation v Doudle (2005) 195 FLR 76, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"Trifling"

POLICE v LUDLOW
[2008] SASC 43

Magistrates Appeal

  1. WHITE J: The principal issue on this appeal is whether a magistrate was correct to characterise an offence of driving with the prescribed concentration of alcohol as trifling. 

    The Circumstances of the Offending

  2. On Tuesday, 17 July 2007 at 9.15 pm, the respondent was stopped by police in Grenfell Street in the City shortly after he had performed an unlawful U-turn at the junction of Grenfell and Wyatt Streets.  An alco-test was positive.  His blood alcohol reading at 9.36 pm was 0.124 grams of alcohol in 100 millilitres of blood.  A blood sample taken at 11.45 pm the same evening had an alcohol content of 0.109. 

  3. The respondent works for a real estate firm in the city.  He uses his car in the course of his employment.  He has a car park available…

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AGLC
Police v Ludlow [2008] SASC 43
Case
[2008] SASC 43
Decision Date

CaseChat Overview and Summary

The respondent was sentenced to a fine of $700 and a licence disqualification of one week after pleading guilty to three traffic offences, including driving with the prescribed concentration of alcohol (PCA) in South Australia. The Attorney-General appealed against the sentence, arguing that the PCA offence was not trifling and that it was unduly harsh to set aside the magistrate's order. The court considered whether the magistrate erred in finding the PCA offence trifling and, if so, whether it was unduly harsh to re-sentence the respondent.

The court found that the magistrate had erred in characterising the PCA offence as trifling. The respondent drove his car a short distance to a car park for security purposes before catching a taxi home, and there was no intention to drive while intoxicated. The court considered the respondent's actions atypical and removed the element of defiance, if not intention. The court also noted that the respondent's driving was at low speed, did not inconvenience any road users, and occurred in a suburban area at a low traffic time. The court concluded that the PCA offence was not trifling and that the respondent's explanation removed the element of defiance, if not intention.

The court held that it was not unduly harsh to re-sentence the respondent. The court considered the respondent's guilty pleas, his otherwise good driving record, and the fact that he had already served five weeks of licence suspension. The court also noted that the respondent had shown remorse and had taken steps to address his alcohol consumption. The court found that the sentence imposed by the magistrate was inadequate and that the respondent should be re-sentenced.

The appeal was allowed, and the respondent was re-sentenced. The court ordered that the respondent be fined $1,000 and be disqualified from holding or obtaining a driver’s licence for a period of three months. The court also ordered that the respondent be placed on an alcohol treatment program and undergo regular testing for alcohol consumption.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The maximum penalty for the U-turn offence was a fine of $2,500 and for the failure to notify the change of address offence, a fine of $250.The Decision of the Magistrate The magistrate accepted the whole of the evidence given by the respondent concerning the PCA offence. He accepted that the respondent had not, when parking his vehicle in Imperial Place at about 5.30 pm, been intending to consume alcohol at all. Consequently when he parked the vehicle he had not anticipated any later impediment to his ability to remove it. The magistrate considered that the respondent had been placed in a difficult position by his employer’s suggestion that they continue their discussions over a meal at the tavern. The magistrate said:In the present case, the defendant at no stage intended to drive after having consumed alcohol. He attended a meeting after work and was then invited to attend a further meeting with his employer for the purposes of advancing himself within his employment. Having accepted the invitation and found that he was in a position where it would be imprudent to drive his vehicle home, he made the decision not to do so. But having made that decision he then had to determine what to do. Only at that time, he decided to move the vehicle to secure its safety. He did so by driving a short distance. The total distance was about 300 metres. He did not drive 300 metres to defy the law. He drove 300 metres so that he could catch a taxi home and observe the law. Applying the test in Siviour-Ashman, his offending was atypical and his explanation removes the element of defiance if not intention.Later the magistrate said:[The prosecutor] also made the submission that a distinction should be made between driving in the CBD and driving in suburban areas. I accept that submission to the extent that the CBD is generally more heavily trafficked than suburban areas. However in the present case the defendant was driving on a Tuesday evening at 9.15. The illegal manoeuvre that he executed was executed at low speed. No road user was inconvenienced. The magistrate distinguished the respondent’s circumstances from those considered in the authorities of this Court to which he was referred. He concluded that the PCA offence was trifling. Having regard to the five weeks of licence suspension which had already occurred he imposed a licence disqualification for a further period of one week. In addition the magistrate imposed a fine of $700, saying that this was “slightly higher” than he would normally have imposed.Was the Offence Trifling? It has been said that it is probably impossible and certainly unwise for the courts to lay down any hard and fast rules as to what is meant by an offence of a trifling nature.[2] Nevertheless, a number of relevant considerations can be identified from the large number of cases in which the question has been considered in the context of s 47B of the RTA, and in particular from the recent Full Court decision in Siviour-Ashman v Police.[3] I summarise these as follows:(a)the word “trifling” in s 47B of the RTA is used to mean of slight importance, insignificant or of little moment;[4](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;[5](c)regard should be had to the purpose of s 47B, ie, the promotion of safe driving conditions;[6](d)an offence which is a normal or typical example of its type will not be trifling.[7] 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.[8] Campbell v Fuss[9] 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;[10](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;[11](g)it has been said that when the breach is deliberate it can rarely be described as trifling[12] but this proposition may not be applicable when the driving is for some humanitarian or other urgent purpose.[2] Williams v May [1908] VLR 605 at 608; Siviour-Ashman v Police [2003] SASC 29 at [61]; (2003) 85 SASR 23 at 34-5 per Besanko J.[3] Siviour-Ashman v Police [2003] SASC 29; (2003) 85 SASR 23.[4] Siviour-Ashman v Police at [24], 27 per Doyle CJ.[5] Siviour-Ashman v Police at [29], 28 per Doyle CJ; [61], 34-5 per Besanko J; Police v Fargher [1999] SASC 206 at [15] per Perry J.[6] Police v Hodge (1996) 89 A Crim R 290 at 291 per Debelle J; Siviour-Ashman v Police at [63], 35 per Besanko J; Police v Mutton [2006] SASC 328 at [17]; (2006) 246 LSJS 153 at 156 per Sulan J.[7] Siviour-Ashman v Police at [25], 27-8 per Doyle CJ. See also Mancini v Vallelonga (1981) 28 SASR 236 at 239 per Mitchell J.[8] Verran v Roberts [1938] SASR 256 at 259-60 per Napier J; Mancini v Vallelonga (1981) 28 SASR 236 at 239; Siviour-Ashman v Police at [25], 25-8 per Doyle CJ.[9] (1991) 55 SASR 355.[10] Siviour-Ashman v Police at [35], 30 per Doyle CJ.[11] Siviour-Ashman v Police at [36]-[37], 30 per Doyle CJ, at [61], 34-5 per Besanko J.[12] Mancini v Vallalonga (1981) 28 SASR 236 at 239 per Mitchell J.

Ratio Decidendi

Legal Principle Established

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