Police v Ludlow - [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

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
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.
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 to him behind a property in Currie Street, a little to the west of Leigh Street.
On 17 July 2007 the respondent returned to the city for a meeting at his employer’s office at about 5.30 pm but was running late. As a means of saving time he parked his car in Imperial Place (which abuts Grenfell Street). After some time, his employer suggested that they continue their meeting over a meal at a nearby tavern. There had been no prior forewarning that such a suggestion would be made. During the course of the meal (between about 7.00 pm and 9.00 pm) the respondent consumed one pint of beer and shared a bottle of red wine with his employer. At the conclusion of the meal the respondent thought that he might be under the influence of alcohol. He decided not to risk driving his vehicle to his home at Parkside. He decided instead to park it in the employer‑provided car park where it would be safe, with the intention of catching a taxi home. He did not wish to leave his car in Imperial Place overnight because, on a previous occasion, it had been vandalised. The respondent drove his car, with his employer as a passenger, east on Grenfell Street and performed a U-turn at the gap in the median strip at the Wyatt Street junction. He intended then to drive west to the property in Currie Street to park his car where it would be left overnight.
A U-turn at the gap in the median strip at Wyatt Street was not permitted. This was clearly indicated by a sign applicable to the respondent.
The respondent was cooperative when stopped by the police. He admitted that the address on his driver’s licence was not current and that he had not informed the Registrar of Motor Vehicles of his change of address several months previously.
Acting under s 47IAA of the Road Traffic Act 1961 (the RTA), the police imposed an immediate licence suspension on the respondent. That suspension applied for a period of five weeks until it was removed by a magistrate (not the sentencing magistrate), on an application of the respondent pursuant to s 47IAB(2)(b)(i) of the RTA. The magistrate did so because he was satisfied that there were reasonable prospects that the PCA offence would be found to be trifling.
The Applicable Penalties
The respondent pleaded guilty to the offence of making a prohibited U-turn in a median strip, contrary to r 39 of the Australian Road Rules; to the offence of driving with the PCA, contrary to s 47B of the RTA; and to the offence of failing to notify the Registrar of Motor Vehicles of his change of address, contrary to s 136 of the Motor Vehicles Act 1959. The PCA offence was a Category 2 offence and the respondent was sentenced as a first offender. This meant that he was liable to a fine of not less that $500 and not more than $900 and a licence disqualification of not less than six months.[1]
[1] Road Traffic Act 1961(SA), s 47B(1) and (3).
By s 47B(3)(b) the minimum disqualification of six months could not be reduced or mitigated in any way unless the Court was satisfied, by evidence from the applicant on oath, that the offence was trifling. In that event, the Court could order a period of disqualification which was less than six months but, in any event, not less than one month.
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.
I approach my consideration of the present case with these considerations in mind.
The respondent submitted that House v The King[13] principles should govern my approach to the appeal. That is, it was submitted that the magistrate’s decision was discretionary and should only be set aside if this Court was satisfied that the magistrate had acted upon a wrong principle, had allowed extraneous or irrelevant matters to guide or affect him, had failed to take account of some relevant consideration, or if, although no specific error could be identified, it was so plainly wrong that it should not be able to stand. With respect, I do not consider that that is the correct approach. The conclusion that the offence was trifling was a conclusion about circumstances which enlivened the court’s discretion under s 47B(3)(b). It was a characterisation of a particular state of affairs. It was not an exercise of discretion. The question for this Court is 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.
[13] (1936) 55 CLR 499 at 505.
On their face, the circumstances in this case do not appear to be rare and exceptional. As was pointed out by Perry J in Police v Fargher[14] it is not an unusual circumstance to find a relatively low blood alcohol concentration together with a relatively short passage of driving and no immediate danger or embarrassment to other road users. I do not consider that those circumstances, considered by themselves, could properly lead to a characterisation of the present offence as trifling.
[14] [1999] SASC 206 at [13].
Mr Henchliffe, who appeared for the respondent, emphasised three principal features of the circumstances of the respondent’s offence. The first was that the respondent had not gone out on the evening of 17 July 2007 intending to drive after consuming alcohol. Instead, he had, in a sense, obliged his employer at short notice by agreeing to continue the employment meeting over a meal. This distinguished the case from the circumstances considered in cases like Police v Selvakulalingam[15] in which the offender had driven a car, intending to consume alcohol and intending to drive home afterwards.
[15] [2007] SASC 424.
Secondly, Mr Henchliffe emphasised that the distance the respondent had driven, and proposed to drive, was short. On the magistrate’s findings he had driven approximately 300 metres with a further 150 metres to go before he reached his car park. The total distance he intended driving was approximately 450 metres. That finding may well have been an under-estimate of the distances involved, but the appellant made no challenge to the finding. The appeal is to be determined on the basis that the respondent had driven approximately 300 metres and intended to drive approximately 450 metres in total.
The third feature of the case is that the respondent was intending to comply with the law by leaving his car and catching a cab home. That is, the respondent was proposing to act in conformity with the law and not in defiance of it.
Despite these features, I do not consider that the respondent’s offence could reasonably be characterised as trifling.
The respondent drove on one of the major east/west thoroughfares in the City of Adelaide with a blood alcohol content well over twice the legal limit. The distance of his intended journey, although relatively short, was not insignificant. In addition, the intended journey involved crossing the intersection of Grenfell Street and Gawler Place twice, the intersection of Grenfell Street with King William Street once, as well as the junctions of Grenfell Street with some side streets. Those intersections were no doubt much less busy than they are in daylight hours, but nevertheless it is likely that there was other vehicular and pedestrian traffic in the vicinity. The respondent performed a U-turn in a place where it was prohibited. Although his driving did not inconvenience any road user it did involve the potential for harm to all other road users, including pedestrians. It also involved risk to his employer who was travelling as his passenger. The circumstances which led him to drive while exceeding the prescribed concentration of alcohol were really self-created. Even though he may have felt obliged to accompany his employer to the meal, it could not have been overly difficult to have absented himself for the 10 minutes or so that it would have taken to have moved the car before the meal commenced or, alternatively, to have moderated his consumption of alcohol during the course of the meal. His driving while exceeding the prescribed concentration of alcohol was deliberate. Contrary to the conclusion of the magistrate, I consider that the respondent’s conduct did involve an element of defiance of the law. The respondent appreciated that he should not drive his vehicle home because of his alcohol consumption. Despite that, he chose to drive his car for the purposes of better securing it. He did have alternatives open to him. For example, he could have telephoned a friend and requested that the friend drive his vehicle home, or made use of one of the commercial operators providing such a service. Alternatively, he could have waited until his blood alcohol content had fallen so that he was able to drive lawfully.
It is to the respondent’s credit that he intended to drive only a relatively short distance. Nevertheless, the driving in this case was much more than the 70 metres involved in the offence considered in Police v Jozinovic[16] to which Mr Henchliffe referred. It is also to the respondent’s credit that he did not intend to drive to his home. However, when regard is had to all the factors to which I have referred above, this offence cannot reasonably be characterised, in my opinion, as trifling. I do not regard this as being one of the border line cases upon which reasonable minds may differ.
[16] [2004] SASC 64, (2004) 40 MVR 385.
This case is not to be determined by a minute comparison of its circumstances with the circumstances of other cases in which the driving occurred over a relatively short distance. I note, however, that my conclusion is consistent with the conclusions reached in the somewhat comparable circumstances considered in Police v Fargher;[17] Siviour-Ashman v Police;[18] Police v Mutton;[19] and Police v Selvakulalingam.[20]
[17] [1999] SASC 206.
[18] [2003] SASC 29; (2003) 85 SASR 23.
[19] [2006] SASC 328; (2006) 246 LSJS 153.
[20] [2007] SASC 424.
Subject to one further submission of the respondent, this means that the appeal should be allowed.
Effect of a Prosecution Appeal
Although this is a prosecution appeal against sentence, the principles governing the court’s approach to Crown appeals involving sentences of imprisonment stated in cases such as Everett v The Queen;[21] R v Osenkowski[22] and R v Nemer[23] are not applicable. Those principles do not apply to appeals from a magistrate which do not involve a custodial sentence.[24]
[21] (1994) 181 CLR 295.
[22] (1982) 30 SASR 212.
[23] [2003] SASC 375; (2003) 87 SASR 168.
[24] Police v Cadd (1997) 69 SASR 150 at 159 per Doyle CJ; Police v Fargher [1999] SASC 206 at [16] per Perry J; Commissioner of Taxation v Doudle [2005] SASC 442 at [5]; (2005) 195 FLR 76 at 78 per Debelle J.
Mr Henchliffe submitted that even if the magistrate had erred, the circumstances of the case were such that it would be unfair to re-visit the sentence. This was so, it was said, because the respondent had served two separate periods of suspension totalling six weeks and had completed the suspension imposed upon him by the magistrate. He had now resumed his employment in which the ability to drive is essential. It is a condition of his employment that he has a current driver’s licence. The respondent says that if he does not have a driver’s licence, it is almost certain that his employment will be terminated. Mr Henchliffe referred to the decision of Perry J in Police v Fargher[25] in which it was said:
Crown appeals may be brought in circumstances in which the penalty handed down, which may not be a custodial penalty, will nonetheless have been served out and the offender may have adjusted his or her life accordingly. Here, the six weeks suspension of licence has been served out. The respondent has resumed driving. She has retained her job, which she would run the risk of losing if the full term of the suspension was now to be imposed upon her.
In those circumstances, I think it proper for this Court to recognise that even short of cases involving a custodial sentence, there may occasionally be situations which arise in the context of Crown appeals, where it would be unfair to revisit the sentence and vary it, even although the imposition of the sentence under appeal is indicative of error. This may not arise very often. An example would be if the defendant has mortgaged his or her house to pay a fine.
If proper grounds are made out, most Crown appeals involving non-custodial sentences, free of the restrictions recognised in Everett and the other cases referred to by the Chief Justice in Cadd, would succeed and an appropriate sentence will be imposed once error in the sentencing process has been established. However, the fact remains that the reason for most Crown appeals, and it is the main purpose of this appeal, is to ensure that adequate sentencing standards are maintained. Where there is an element of double jeopardy, it is sometimes sufficient to identify the correct sentencing standard or approach, but to refrain from varying the actual penalty under appeal. [26]
[25] [1999] SASC 206.
[26] Ibid at [17]-[19].

In these passages, Perry J recognised that there may be circumstances on appeals of the present kind in which an element of double jeopardy may be present, ie, the defendant being punished twice for the same conduct. 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. This Court is justified in such circumstances in dismissing the appeal. Perry J gave the example of a defendant who has changed his/her circumstances in a material way in consequence of a magistrate’s decision. The public interest and the effect on third parties may be another example. These two considerations appear to explain the decision in Fargher itself. Perry J was influenced by the dependence of a disabled person on the continued availability to her of the defendant. That availability depended on the defendant having a driver’s licence. There may of course be other circumstances which would warrant the Court not interfering with a magistrate’s decision in cases of the present kind.
However, although I recognise the disappointment to the respondent which my decision will create and that there will be disruption to his life, I do not consider that this case comes within the circumstances described in Fargher. No particular difficulties caused by a change in the respondent’s circumstances in consequence of the magistrate’s decision have been shown. The respondent’s affidavit received on this aspect of the appeal did not assert that there had been any alteration of his position since the magistrate’s decision. The matters to which he deposed are the kinds of circumstances which would have been relevant to the magistrate’s sentence if he had not found the offence trifling. Further, it is likely that the respondent knew of the prosecution appeal before he commenced serving the period of suspension imposed by the magistrate. The magistrate sentenced the respondent on 10 December 2007, but ordered that the suspension not commence until 12.01am on 25 December 2007. This appeal was instituted on 20 December 2007. The respondent must have appreciated the possibility that the magistrate’s decision would be disturbed on appeal. The respondent’s circumstances do not come within those contemplated by Perry J in Fargher. Further, I agree with the statement of Sulan J in Police v Mutton[27] to the effect that 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 this Court not to give effect to the statutory requirement.[28]
[27] [2006] SASC 328; (2006) 246 LSJS 153.
[28] Ibid at [22], 158.
Re-Sentence
Both parties invited this Court to re-sentence the respondent in the event that the appeal is allowed. Before doing so, it is necessary to mention the offences of making a prohibited U-turn, and of failing to notify the change of address.
The magistrate’s sentencing remarks do not refer to the offence of failing to notify the change of address at all and, although the illegal U-turn is mentioned, that was in the context of the magistrate’s reasons for his conclusion that the PCA offence was trifling. Neither the magistrate’s sentencing remarks nor the Magistrates Court record indicate that any sentence at all was imposed for those two offences.
However, there are two indications that the magistrate may have intended a single sentence to apply to all three offences. The first is the magistrate’s statement that the fine of $700 was slightly higher than he would normally have imposed. It is not readily to be supposed that the magistrate would have imposed a higher than normal fine in respect of an offence which he regarded as trifling. Secondly, the magistrate fixed criminal injuries compensation levies in the sum of $210, which was the appropriate amount for three summary offences. I am satisfied therefore that the magistrate intended to deal with these offences by the order which he made, although in the events that happened he has not done so. I add that it was not possible for the magistrate in any event to impose a single sentence under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) in respect of these offences. Section 18A cannot be used to impose a single sentence for offences which attract different types of penalty. In this case, some licence disqualification had to be imposed in respect of the s 47B offence but the offence against s 136 of the MVA did not attract a sentence of licence disqualification at all.
Ms Riddle, who appeared for the Police, submitted that in the circumstances an appropriate sentence for the offences other than the s 47B offence would be to enter a conviction without any further penalty. I agree, especially as the magistrate imposed a fine for the s 47B offence which he said was higher than normal and apparently because of these two offences. I will not interfere with the amount of the fine.
I am satisfied that disqualification for the minimum period of six months specified in s 47B(3)(a) of the RTA is appropriate. Account must be taken of the five weeks of immediate licence suspension imposed by the police.[29] Account should also be taken of the one week of suspension served in consequence of the magistrate’s order. A licence disqualification for a further 20 weeks is therefore appropriate. I will hear from the parties as to the commencement date for that disqualification.
[29] RTA, s 47IAA(9)(e).
Summary
For the reasons given above, I allow the appeal. I set aside the sentence of the magistrate. In respect of the offence of driving while exceeding the prescribed concentration of alcohol (Count 2 on the complaint) the respondent is fined $700 and disqualified from holding or obtaining a driver’s licence for a period of 20 weeks. The period of disqualification is to commence on a date to be fixed. In respect of the offences against r 39 of the Australian Road Rules (Count 1) and against s 136 of the MVA (Count 3), the respondent is convicted without further penalty. The orders of the magistrate with respect to court fees, prosecution costs and levies are to stand.