Police v Mutton - [2006] SASC 328

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v MUTTON
[2006] SASC 328
Judgment of The Honourable Justice Sulan
1 November 2006
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
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 - OTHER OFFENCES
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 - POWERS OF APPELLATE COURT - PARTICULAR MATTERS
Prosecution appeal - appellant pleaded guilty to the charge of driving whilst there was present in his blood the prescribed concentration of alcohol, being 0.140 grams in a hundred millilitres of blood - whether the offence is trifling - whether the principle of double jeopardy applies - power of Court order that period of licence disqualification already served be taken into account.
Magistrates Court Act 1991 s 42(5)(c); Road Traffic Act 1961 s 47A, s 47B, s 47(3)(b), referred to.
Campbell v Fuss (1991) 55 SASR 355; Police v Hodge (1996) 89 A Crim R 290; Siviour-Ashman v Police (2003) 85 SASR 23; Walden v Hensler (1987) 163 CLR 561, considered.

POLICE v MUTTON
[2006] SASC 328
Magistrates Appeal
SULAN J:
Introduction

The issue raised in the appeal is whether a breach of s 47B of the Road Traffic Act 1961 (“The Act”) by the respondent is trifling.
Background
On 30 July 2005, at about 12.50 a.m., police observed the respondent driving a motor vehicle on Outlook Drive at Aberfoyle Park. The respondent was apprehended at his home. He was conveyed to Sturt Police Station where a blood alcohol breath test was conducted which returned a reading of .149 grams of alcohol per 100 millilitres of blood. The respondent admitted to the police that earlier that day, between 5 p.m. and 10.50 p.m., he had consumed between four to six bottles of beer at a work barbeque. He had caught a taxi home. Throughout the judgment, I shall not repeat the quantity of alcohol in the blood in terms of grams per 100 millilitres of blood, but I shall simply refer to the figure.
The respondent pleaded guilty to driving a motor vehicle whilst there was present in his blood the prescribed concentration of alcohol, contrary to s 47B of the Act. Section 47A of the Act provides that if the quantity of alcohol in a person’s blood exceeds .08, but is less than .15, then it is a category 2 offence. The penalty for a first category 2 offence is a fine of not less than $500 and not greater than $900, and a compulsory suspension of licence of not less than six months.
Section 47B(3)(b) of the Act provides that the disqualification of licence of not less than six months cannot be reduced unless,…

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 Mutton

Details

AGLC: Police v Mutton [2006] SASC 328
Case: [2006] SASC 328
Decision Date: 1 November 2006

CaseChat Overview and Summary

In the case of Police v Mutton, the appellant, the Police, appealed against the sentence imposed on the respondent who had been convicted of driving a motor vehicle while the concentration of alcohol in his blood exceeded the prescribed limit. The respondent had pleaded guilty to the charge under s 47B of the Road Traffic Act 1961. The primary issue for the court was whether the offence was trifling, which would have allowed the court to reduce the minimum six-month licence disqualification to a period of at least one month. The court also needed to consider the principles of double jeopardy and the power of the appellate court to order that a period of licence disqualification already served be taken into account.

The respondent had driven a short distance to purchase milk for his ill children, and there were no other vehicles on the road at the time. The Magistrate found the offence trifling based on these humanitarian reasons and imposed a fine of $550 and a one-month disqualification of licence. The Police argued that the offence was not trifling because the respondent had driven under the influence of alcohol, which posed a risk to public safety. The court had to weigh the humanitarian reasons for the respondent’s actions against the need to uphold the law and deter similar offences.

The court found that the Magistrate had erred in concluding that the offence was trifling. While the respondent’s actions were driven by humanitarian concerns, the fact remained that he had driven under the influence of alcohol, which inherently posed a risk to public safety. The court set aside the original sentence and imposed a six-month disqualification of licence, taking into account the one month already served by the respondent. The respondent was fined $550 and disqualified from holding or obtaining a driver’s licence from 8 November 2006 until 8 April 2007.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issue raised in the appeal is whether a breach of s 47B of the Road Traffic Act 1961 (“The Act”) by the respondent is trifling.Background On 30 July 2005, at about 12.50 a.m., police observed the respondent driving a motor vehicle on Outlook Drive at Aberfoyle Park. The respondent was apprehended at his home. He was conveyed to Sturt Police Station where a blood alcohol breath test was conducted which returned a reading of .149 grams of alcohol per 100 millilitres of blood. The respondent admitted to the police that earlier that day, between 5 p.m. and 10.50 p.m., he had consumed between four to six bottles of beer at a work barbeque. He had caught a taxi home. Throughout the judgment, I shall not repeat the quantity of alcohol in the blood in terms of grams per 100 millilitres of blood, but I shall simply refer to the figure. The respondent pleaded guilty to driving a motor vehicle whilst there was present in his blood the prescribed concentration of alcohol, contrary to s 47B of the Act. Section 47A of the Act provides that if the quantity of alcohol in a person’s blood exceeds .08, but is less than .15, then it is a category 2 offence. The penalty for a first category 2 offence is a fine of not less than $500 and not greater than $900, and a compulsory suspension of licence of not less than six months. Section 47B(3)(b) of the Act provides that the disqualification of licence of not less than six months cannot be reduced unless, in the case of a first offence, the court is satisfied by evidence given on oath that the offence is trifling. In such a case, the court may reduce the disqualification to below the minimum period prescribed but not less than one month. The respondent gave evidence on oath. He said that he had drunk four to six bottles of Cooper’s Pale Ale at a work function. He had left the function at about 10.30 p.m. and travelled by taxi to his home at Aberfoyle Park. When he arrived home, his wife and his twin children, who were then about three years of age, were ill with “the ‘flu”. His wife went to bed and he remained awake watching television. At about midnight the children awoke. They wanted a drink of milk, but there was none in the house. The respondent left the house and drove about 400 metres to a service station to purchase some milk. The service station was shut, so he returned home. It was at this time that he was apprehended by the police. He said he was not concerned about the amount of alcohol he had drunk because it was a few hours since he had consumed alcohol. During the period when he drove, he saw no other traffic other than the police vehicle. In cross-examination, he agreed that his wife has a driver’s licence, but he said that she was too ill with “the ‘flu” to have gone out. He said he did not walk because he was wary of walking in the area late at night. The findings of the Magistrate The Magistrate observed that the respondent had been co‑operative, and that the trip was short. He also noted that there were humanitarian reasons to explain the respondent’s conduct, namely, to purchase milk for his sick children. The Magistrate considered it was relevant that the respondent was wary about walking late at night. He referred to the fact that the respondent’s wife was ill, that there was no traffic on the road, other than the police vehicle, and that the respondent’s driving was normal. There were no other aggravating circumstances. The Magistrate concluded that the offence was trifling. He imposed a fine of $550 and reduced the minimum six months disqualification of licence to one month.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The respondent has served one month suspension of his driver’s licence. The order that I make should have regard to the period that the respondent has not been permitted to drive. The minimum period of suspension for the offence is six months. The respondent is, therefore, suspended from holding or obtaining a driver’s licence for six months. I take into account the one month’s licence suspension already served. I order that the respondent be disqualified from holding or obtaining a driver’s licence until 8 April 2007.Conclusion I find that the Magistrate was in error in concluding that the offending was trifling. The appeal is allowed. The sentence is set aside. The respondent is fined the sum of $550. He is suspended from holding or obtaining a driver’s licence for six months. I order that the suspension of licence commence on 8 November 2006 at midnight and remain in force until midnight on 8 April 2007.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.