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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Malycha

Details

AGLC: Police v Malycha [2013] SASC 169
Case: [2013] SASC 169
Decision Date: 8 November 2013

CaseChat Overview and Summary

The appeal in Police v Malycha was lodged by the police against a decision of a magistrate to reduce the disqualification period for a first-time drink-driving offence. The respondent, who drove her vehicle approximately 100 meters with a blood alcohol reading of 0.156 and had two children in the car, pleaded guilty. The magistrate found the offending to be trifling and reduced the disqualification period from 12 months to three months. The police appealed the magistrate’s decision, contending that the reduction was inappropriate given the severity of the offence.

The central legal issue before the court was whether the magistrate was correct in finding that the respondent’s offending was trifling under s 47B(3)(b) of the relevant Act, which permits a reduction in the disqualification period for a first-time drink-driving offence if the court is satisfied that the offence is trifling. The court had to determine whether the circumstances of the offence were indeed unusual or exceptional, warranting a reduction in the penalty. The leading authority on this matter is Siviour-Ashman v Police, which outlines that trifling means of slight importance, insignificant, or of little moment. The court must consider whether the offence is a trivial example of the forbidden act, thereby justifying a reduction in the usual penalty.

The court reviewed the magistrate’s findings and examined the exceptional circumstances presented. It noted that the respondent had no intention to drive and had taken steps to ensure she would not drive, such as lending her car to a friend. The court also highlighted the short distance driven, the absence of traffic, and the lack of actual danger created to any person. Despite the high blood alcohol content and the presence of children in the car, the court found that the circumstances were indeed very different from the typical drink-driving offence. The court upheld the magistrate’s decision, affirming that the offence was trifling and thus the reduction in the disqualification period was appropriate.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

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