Police v Malycha

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.