Police v Malycha - [2013] SASC 169

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v MALYCHA
[2013] SASC 169
Judgment of The Honourable Justice Kelly
8 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 pleaded guilty to one count of driving with a prescribed concentration of alcohol – respondent drove her vehicle approximately 100 meters with a blood alcohol reading of 0.156 with children in car – Magistrate found offending was trifling and reduced the penalty of disqualification from 12 months to three months.
Whether Magistrate’s conclusion that the offending was trifling was wrong.
Held: appeal allowed – the Magistrate erred in finding that the offending was trifling – offending conduct not atypical and in any event no proper reason advanced by the respondent – aggravating factors not accorded sufficient weight by the Magistrate – the licence disqualification period of 12 months prescribed by the Act must be applied.
Road Traffic Act 1961 (SA) s 47A, s 47B(1)(a), s 47B(3)(b), referred to.
Siviour-Ashman v Police (2003) 85 SASR 23; Police v Ludlow (2008) 181 A Crim R 235, applied.
Campbell v Fuss (1991) 55 SASR 355; Police v Jozinovic [2004] SASC 64; House v The King (1936) 55 CLR 499; Draoui v Police [2010] SASC 94, discussed.

POLICE v MALYCHA
[2013] SASC 169
Magistrates Appeal: Criminal
KELLY J.
Introduction

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”).
On that date the respondent’s solicitor submitted that the offence was trifling within the meaning of s 47B(3)(b) of the Act. The respondent gave evidence on oath and in due course the learned Magistrate found that the offence was trifling and accordingly reduced the disqualification period to three months which, absent a finding that the offence was trifling, would have been for a period of not less than 12 months.
The police appeal against the finding that the respondent’s offending was trifling.
Background
The respondent’s offending was detected when she was stopped by police in the early hours of the morning on 27 July 2013 driving a vehicle in the township of Redhill. Her blood alcohol reading was recorded as 0.156 which placed her offending in the highest category (three) for an offender committing a first offence. She had two children in the car with her when she was stopped.
The respondent had attended two parties in the township of Redhill that night. She had not intended to drive the car when she set out and in fact during the course of the evening lent her car to a friend who drove others to a farmhouse near Redhill before returning it to a street near the respondent’s residence in Redhill. On the way home from the second party at about midnight the respondent made a decision on seeing her car in the street near her home to drive the vehicle home. There was no dispute that the distance travelled from the point where she drove the vehicle to her home was approximately 100 metres.
Magistrate’s reasons
The Magistrate found that the circumstances of the offence were “very different to the ordinary sort of offence which is usually seen”. He found that the respondent had no intention to drive that night and that she had taken proper steps to ensure she would not drive. He found the appellant made a spur of the moment decision to drive her car when she came across it parked in the street about 100 metres from her home. He noted the short distance driven, that there was no traffic and no actual danger created to any person, notwithstanding, as the Magistrate noted himself, the high blood alcohol content recorded of 0.156 and the fact that the respondent had two children in the car with her.
Nevertheless the Magistrate determined that the application was trifling and reduced the licence disqualification to a period of three months.
Discussion
The starting point for consideration is s 47B(3)(b) of the Act which provides:
(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;
…
The South Australian Law Reports are replete with examples of various circumstances where the Court has had to consider whether an offence against s 47A or s 47B of the Act might be considered trifling within the meaning of s 47B(3)(b).
Siviour-Ashman v Police[1] remains the leading authority as to which offending may be considered trifling. Doyle CJ (with whom Besanko J agreed) acknowledged the general principle that trifling means of slight importance, insignificant, of little moment. If the offence is a normal or typical example of its kind it cannot be considered trifling. The intention behind s 47B(3)(b) must be to deal with unusual or exceptional cases the circumstances of which call for the usual minimum to be put to one side. The offence might be unusual or exceptional in this sense if it is a trivial example of the forbidden act.
[1] (2003) 85 SASR 23.
Doyle CJ in Siviour-Ashman said that although in determining whether an offence is trifling it is relevant to consider the offending conduct as well as the justification for it, in the case of an offence contrary to s 47B(1) the offending conduct is to be given more weight than the explanation for it. In this respect Doyle CJ drew a distinction between a driver who drives with the prescribed concentration of alcohol in their blood but drives a short distance to move a motor vehicle that is otherwise a danger, or to take an injured person to hospital, and a driver who drives an equally short distance but for no good reason, or who drives a motor vehicle for a substantial distance for the reasons suggested. Doyle CJ recognised however that in every case it is a matter of considering the offending conduct as well as the justification and that this is an area in which minds can differ.
Campbell v Fuss[2] was a case where a single Judge of this Court determined contrary to a Magistrate’s finding that an offence of driving with a prescribed concentration of alcohol in the blood contrary to s 47B, where the driving constituted no more than a minor adjustment of the parking position of the relevant vehicle at a time and in a place where no danger was likely to or did arise, could be considered trifling.
[2] (1991) 55 SASR 355.
In Police v Jozinovic[3] Perry J dismissed an appeal against the finding of a Magistrate that the circumstances of an offence where the driver drove 70 metres, was trifling within the meaning of s 47B(3)(b). In reaching that conclusion Perry J said:[4]
In my view, this is a borderline case. It may well be that another magistrate might have held that the offence was not trifling. In the particular circumstances, however, it has not been demonstrated that the finding by the magistrate that it was trifling was a finding which lay outside a proper exercise of the discretion.
Not without some hesitation, I would dismiss the appeal against the finding that that offence was trifling.
[3] [2004] SASC 64.
[4] Police v Jozinovic [2004] SASC 64 at [32]-[33].
It is plain on reading the whole of the judgment in Jozinovic that Perry J’s decision not to interfere with the decision of the Magistrate’s finding that the offending was trifling was influenced to some extent by the fact that there was irregularity in the procedure adopted by the Magistrate in disposing of two other relevant counts. As Perry J noted in these circumstances he was not minded to “turn the clock back”.
In Police v Ludlow[5] White J applied these principles to the disposition of a matter where a driver with a blood alcohol reading of approximately 0.124 was apprehended executing and unlawful u-turn at the junction of Wyatt Street and Grenfell Street in the Adelaide CBD. He was in the process of moving his car from a spot just off Grenfell Street to a nearby city car park provided for by his employer as he did not want to leave his car in that place overnight in the spot where it was as on a previous occasion it had been vandalised. The total distance he intended to travel was 450 metres.
[5] (2008) 181 A Crim R 235.
White J conveniently summarised the relevant considerations identified in the authorities which arise on any application made in the context of s 47B(3)(b) of the Road Traffic Act as follows:[6]
[6] 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]
In concluding that the Magistrate was wrong in finding that the offence was trifling, White J observed that he did not regard the matter as borderline. Nor did he consider that the case should be determined by a minute comparison of the circumstances of that matter with the circumstances of other cases where the driving occurred over a relatively short distance.
Counsel made submissions about the distinct approaches that have been adopted by this Court in determining whether an offence is trifling. The first approach involves the exercise of discretionary judgment on the part of the court. That approach, derived from House v The King[7] was adopted by Nyland J in Draoui v Police.[8] Her Honour reasoned, “the characterisation of an offence as trifling is the expression of a discretionary judgment. Accordingly, that discretion should not be interfered with unless the Magistrate acted upon a wrong principle, mistook the facts, acted upon an extraneous or irrelevant matter or did not take into account a material consideration”.[9] This would require the appellant to show that the discretion miscarried by the learned Magistrate. In Ludlow, White J did not consider this to be the correct approach and emphasised that a finding that an offence is trifling is not an exercise of discretion, but “a conclusion about circumstances which enlivened the court’s discretion under s 47B(3)(b).”[10]
[7] (1936) 55 CLR 499.
[8] [2010] SASC 94.
[9] Draoui v Police [2010] SASC 94 at [20].
[10] Police v Ludlow (2008) 181 A Crim R 235 at [15].
I doubt whether the consequences of either approach would ever make much difference. However I prefer White J’s approach. The question is whether the Magistrate’s conclusion that the respondent’s offending was trifling is wrong in the sense that it was not reasonably open to the Magistrate having regard to all of the circumstances of the offence to make that finding. In my view the Magistrate’s finding that the respondent’s offending in this case was trifling was wrong. Although it was only a short distance the respondent intended to travel, when all of the circumstances are taken into account, it is my view that the respondent’s offending falls fairly and squarely on the wrong side of the line referred to by Doyle CJ in Siviour-Ashman.
However, my finding that the Magistrate was in error does not differ on either approach. Even if the characterisation of the offence as trifling is regarded as the exercise of a discretionary judgment, my conclusion would be the same as I have concluded that the Magistrate did not properly take into account two material considerations, being the respondent’s high blood alcohol level, and the fact that she had two children under 14 in the car with her.
On the one hand the distance the respondent intended to travel was a relatively short one being approximately 100 metres. It was late at night in a small country town however the respondent had two children in the car with her at a time when her blood alcohol reading on any view of the matter was a high one. It was so high that it placed her offending in the category three level. To my mind these are important factors which must bear on the question whether the offence would properly be characterised as trifling. Although the Magistrate made reference to both those aspects of the offending, it is plain that he accorded them insufficient weight.
The point of the road safety legislation is to promote the establishment of safe driving conditions. The respondent’s decision to drive was a deliberate and intentional act. In this sense it is beside the point that earlier that night when not affected by liquor it was not her intention to drive. In making the decision to drive at that time and hour the respondent placed herself and her children at some considerable risk. There was nothing inadvertent about the decision to drive. The explanation which the respondent proffered I find was not for any humanitarian purpose. Even accepting that she was experiencing pain in her knee, and there is no reason to doubt the respondent, I consider that the explanation which she gave to the Magistrate has the ring of an ex post facto rationalisation of the very kind of error of judgment that a person with a high blood alcohol level late at night might make. That is the very kind of decision which the provisions in the road safety legislation are designed to deter. The respondent had, after all, earlier that night walked to one party before leaving that party to go to the other and she was walking home when she made the spur of the moment decision to drive the vehicle. The respondent agreed she could just as quickly have walked the extra distance home. It is implicit that her decision to get in the car and drive was more a decision based on convenience than necessity. There is no escaping the fact that given the impairment of her faculties which must be presumed at a level of 0.156, the respondent placed herself and her children at some risk.
On the whole of the circumstances I find the offending was not trifling. To the contrary it is a typical instance of the offence of driving with a prescribed concentration of alcohol. I consider it would send quite the wrong message to the community if the decision of the Magistrate was allowed to stand.
For these reasons the appeal must be allowed. The finding of the Magistrate that the offending was trifling is set aside. The licence disqualification will be 12 months to date from 27 July 2013. No complaint was made about the level of the fine. I do not consider it necessary to intervene with the amount of the fine.