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, 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.
The appellant contends that the Magistrate erred in concluding that the offence was trifling.
Was the offence trifling?
In considering whether an offence is trifling, the court will have regard to the conduct which constitutes the offence and to the actual circumstances in which the offence is committed.[1] In considering whether the offence is trifling, it is relevant to consider the mischief which the statute seeks to prevent, and whether the offence is a normal or typical example of its type.
[1] See Walden v Hensler (1987) 163 CLR 561.
Section 47B of the Act was enacted to ensure that persons do not drive vehicles when their blood contains alcohol which exceeds the limits prescribed in the section. The provision makes no reference to the manner of driving, the distance over which the vehicle is driven, the amount of traffic on the road at the time, nor whether the road upon which the vehicle is being driving is a major or minor carriageway.
Prevention of danger or potential danger to other road users is the purpose of the legislation. At the time that the legislation was enacted, the Minister for Transport, in introducing it in the House of Assembly said:
Illegal concentrations of blood alcohol are involved in about 30 per cent of fatal road crashes in South Australia – about 47 people died last year because of illegal alcohol levels. About 15 per cent of serious injury crashes – which caused serious injuries to about 235 people last year – involved illegal concentrations of alcohol. The likelihood of having a crash doubles for every 0.05 per cent increase in blood alcohol concentration (BAC). Except for the Northern Territory, every other jurisdiction has licence disqualification as part of the penalty for drink driving offences of 0.05 BAC or more, whereas South Australia presently only imposes licence removal for offences of 0.08 or more.
Drink driving cannot be condoned. There is no acceptable reason for driving while affected by alcohol. The link between the road toll and drink driving has been vividly demonstrated over many years. The recent plateau in the number of drink driving offences detected and the ever escalating number of crashes involving alcohol affected drivers clearly reveals that a new approach is needed.[2]
[2] South Australia, Parliamentary Debates, House of Assembly, 16 October 2002, Fiftieth Parliament, Second Session 1572.
Section 47B(3)(b) recognises that there may be exceptional circumstances which justify the reduction of the minimum penalty prescribed. These circumstances may relate to the offending itself, or they may relate to the reason for the driving. An example in which the offending conduct was such as to constitute it as trifling was considered by the Court in Campbell v Fuss.[3] In that case, the appellant who had a high reading of .2, moved a car a few metres to avoid a danger which had arisen from the manner in which the car had originally been parked. As there had only been a “minor adjustment of the parking position”, at a time and place when there was no danger likely to arise, nor did any danger arise, the offence was considered trifling.
[3] (1991) 55 SASR 355.
In Siviour-Ashman v Police,[4] the appellant had pleaded guilty to a charge of driving whilst there was present in her blood the prescribed concentration of alcohol. The agreed facts were that the appellant was stopped at the random breath testing station and recorded a blood alcohol reading of .12 when tested by police. That evening, the appellant had consumed three standard drinks of Southern Comfort and Coke, interspersed with glasses of water, over a period of about three and a half hours. A short time before she left the bar, she had asked the barman for a glass of water. He had offered her a fruit drink, which she consumed. Unbeknown to the appellant, the drink contained alcohol. It was accepted that she would not have accepted the drink had she known it contained alcohol. She had been careful not to consume an excessive amount of alcohol so as to avoid the risk of committing an offence. It was agreed that, other than for the consumption of the fruit drink, the appellant would not have had the prescribed concentration of alcohol in her blood. There was no evidence to suggest that the appellant had felt the effects of the alcohol, nor in any way realised that her ability to drive was impaired. There was no evidence that she appeared affected by alcohol. A Magistrate and a single Judge of this Court were not satisfied that the offence was trifling. The appellant appealed. She submitted that the offence was trifling because she did not know and could not have been expected to realise that she was driving whilst there was greater than the prescribed limit of alcohol in her blood. Doyle CJ, with whom Besanko J agreed, dismissed the appeal. Doyle CJ observed that the section is intended to deter persons from driving when there is a risk of them having the prescribed concentration of alcohol in their blood. The legislation was enacted for the safety of road users and to reduce the potential for accidents and injury. The good intention of the person driving is of minimal relevance as a mitigating factor. Doyle CJ drew a distinction between the offending conduct itself and the circumstances surrounding the offence. He accepted that the law recognises that there may be exceptional humanitarian reasons which justify the court concluding that an offence is trifling.
[4] (2003) 85 SASR 23.
The Chief Justice made reference to the decision in Police v Hodge,[5] in which the offender pleaded guilty to driving whilst there was .156 in her blood. She had eaten a meal and consumed alcohol at a North Adelaide hotel. As she was leaving with her companion, he suffered a fainting fit. She made a snap decision to drive him to the Royal Adelaide Hospital. The Magistrate concluded that, under the circumstances, her response to the situation was reasonable. She knew she was affected by alcohol, but made a decision to drive. The Magistrate found that the offence was trifling. Debelle J regarded the case as a borderline one but did not interfere with the Magistrate’s decision.
[5] (1996) 89 A Crim R 290.
The Chief Justice in Siviour-Ashman agreed that Hodge’s case was borderline. He considered that it was on the wrong side of the border, but accepted it was an area in which views may differ. He observed that the defendant had driven some kilometres on main roads whilst significantly affected by alcohol. In his view, in the context of the case, it was not trifling. Doyle CJ contrasted the situation in Hodge’s case with that in Campbell’s case, which he concluded was not a typical case of driving. In Campbell’s case, the vehicle was only moved a short distance. The explanation offered removed any element of intent and defiance of the law. The Chief Justice contrasted that situation from one where a person defies the law and drives, no matter what their explanation may be.
Humanitarian reasons can, on their own, be such that a court concludes that an offence is trifling. Those cases must be rare and exceptional. Only in the most exceptional circumstances could an offence committed with intent and defiance of the law be regarded as trifling on the basis that the person had driven for humanitarian reasons. Mullighan J in his dissenting judgment in Siviour-Ashman[6] observed that the circumstances must be considered as a whole, including the driving conduct and the reason for driving. He considered that an offence involving an appellant who is unaware of the amount of alcohol they had consumed, through no fault of their own, could be characterised as trifling. He said that when the offence is deliberately committed for a particular reason, even humanitarian, the characterisation of the offending as trifling is less likely to be justified. In the circumstances, he was of the view that the offence was trifling. Besanko J accepted that the circumstances of how the offence is committed are relevant when considering whether the offending is trifling. He observed, however, that the nature of the offence is such, that the circumstances in which humanitarian reasons will lead to the conclusion that the offence is trifling, will be extremely limited. He dismissed the appeal.
[6] (2003) 85 SASR 23, 33.
In this case, one might have some sympathy with the predicament with which the respondent found himself. It was late at night, his wife and children were ill and his children were asking for a drink of milk. He believed that sufficient time had elapsed, since his last drink, to enable him to drive. Nevertheless, he drove some distance on public roads. His judgment about the level of alcohol in this blood was seriously flawed. He had just below the level of alcohol in his blood for the offence to be classified as a more serious category 3 offence. He had an alternative course of action available to him. He could have walked, or he could have asked his wife to drive to the service station to purchase the milk.
The fact that the respondent drove a relatively short distance on a quiet street when there was no traffic does not make the case exceptional. There was nothing to constitute the offending as non-typical. The respondent was significantly over the prescribed limit of .05. There was no question of him not knowing that he had consumed alcohol. He may have miscalculated the amount he had consumed. His miscalculation was significant. The circumstances were not dissimilar to Hodges’ case, although I observe that in that case the defendant drove in traffic, so the risks to other road users may have been greater. Nevertheless, the respondent’s conduct created a potential danger to other road users.
Double jeopardy
The respondent submits that if the Magistrate erred, I should have regard to the fact that he has served a period of licence disqualification of one month. He has since resumed driving. Counsel for the respondent submits that it would be unfair to re-sentence the respondent to a further term of licence disqualification and I should, therefore, dismiss the appeal.
The respondent submits that I should adopt the reasoning of Perry J in Police v Fargher.[7] In that case, the respondent was driving in the early hours of the morning when he was stopped at a random breath testing station and, upon being tested, it was found that his blood alcohol level was .089. The respondent was 48 years of age and had three children. She was employed and cared for disabled people. She was required to drive for her employment and take disabled people to various places, including hospital. On the night in question, she had gone to an hotel and drunk a number of shandies of lemonade and beer. She then drove to pick up her daughter from a school party. Her driving was normal. The Magistrate determined that the offence was trifling.
[7] [1999] SASC 206.
Perry J concluded that circumstances personal to the offender will often excite sympathy. However, s 47B(3)(b) limited the court’s discretion to cases where the offending is characterised as trifling. Perry J considered whether there are circumstances in which the court might not interfere with the sentence, although an error is identified in a non-custodial sentence. He said:
Crown appeals may be brought in circumstances in which the penalty handed down, which may not be a custodial penalty or 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 Everitt 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. (References omitted)
Perry J dismissed the appeal.
The respondent’s counsel submits that the respondent has resumed driving and he has adjusted his life accordingly. He submits that it would be unfair to impose a further suspension of licence considering that the respondent is driving again.
In cases in which the legislature has prescribed minimum non-custodial penalties and there has been an error in failing to impose that minimum penalty, it will be rare for an appellate court not to give effect to the statutory requirement of a minimum licence suspension. Factors such as the level of alcohol in the blood, the distance of the driving, the reasons for the driving, and the current personal circumstances of a defendant are relevant. For example, factors such as a defendant having obtained a new job which required him or her to possess a current driver’s licence, or a defendant’s family situation having changed so that it was necessary for them to drive, may be sufficient to satisfy the court that an appeal should be dismissed.
In this case, there is nothing about the personal circumstances or circumstances of the offending which would justify the exercise of my discretion to dismiss the appeal.
Conclusion
The respondent submits that I should take into account the one month’s suspension of licence he has already served. Section 47B provides for a minimum term of suspension. The Court has no power to reduce that minimum penalty, unless the offence is trifling. Since I have found that the offending in this case is not trifling, the minimum disqualification of licence of six months must be imposed.

Section 42(5)(c) of the Magistrates Court Act 1991 provides that on the hearing of an appeal an appellate court may make any order that may be necessary or desirable in the circumstances. Rule 97.18 of the Supreme Court Rules 1987 provides that an appellate court may make such further or other orders as the justice of the case may require.
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.