Police v Nowak

POLICE v NOWAK
[2000] SASC 82

Full Court: Doyle CJ, Debelle and Bleby JJ

DOYLE CJ. The respondent to this appeal appeared before a Magistrates Court and pleaded guilty to two offences of driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol, the offence being contrary to the provisions of s 47B of the Road Traffic Act 1961 (“the Act”). The offences were committed respectively on 17 January 1999 and 26 March 1999.
The respondent came before the Magistrates Court on 20 July 1999. The Magistrate convicted him on each count. The Magistrate imposed a penalty on each count. The sentence on the second matter was imposed on the basis that the offence of 26 March 1999 was not a “second offence” for the purposes of s 47B(1) of the Act. In proceeding on that basis the Magistrate acted consistently with the decision of Judges of this Court.
The appeal is brought by the appellant to challenge the correctness of those decisions. The appellant asks the Court to hold that the offence of 26 March 1999 was a second offence for the purposes of s 47B(1) of the Act.
I should add that the respondent was convicted of certain other offences committed on 17 January 1999 and 26 March 1999. In respect of the former date he was convicted of driving in contravention of a condition endorsed upon his driver’s license, the contravention being the presence of alcohol in his blood, contrary to s 81A(5) of the Motor Vehicles Act 1959, he was convicted for the offence of failing to produce his provisional license, contrary to s 98AAB(2) of the Motor Vehicles Act, and he was also convicted for driving a motor car on a road contrary to the terms of a defect notice, that offence being contrary to s 160 of the Act. In relation to 26 March 1999, he was convicted once again of driving a motor vehicle on a road in contravention of a condition endorsed upon his license, the contravention being the presence of alcohol in his blood, contrary to s 81A(5) of the Motor Vehicles Act.

First, second and subsequent offences

In s 47B of the Act Parliament has gone to some trouble to prescribe minimum and maximum penalties which distinguish offences against s 47B, and provide for increased penalties, by reference to the seriousness of the offence (that is, the concentration of alcohol in the blood) and by reference to the offence in question being a first offence, a second offence or a subsequent offence.
There is no definition of first offence, second offence and subsequent offence in the Act, but s 47B(4) provides as follows:
“For the purposes of determining whether an offence is a first, second or subsequent offence for the purposes of this section, any previous offence against subsection (1) (being a category 2 offence or category 3 offence) or against section 47(1), 47E(3) or 47I(14) for which the defendant has been convicted will be taken into account, but only if the offence was committed within the period of five years immediately preceding the commission of the offence under consideration.”
The submission for the appellant begins with the observation that when the Magistrate came to sentence the respondent for the offence against s 47B(1), committed on 26 March 1999, the Magistrate had already convicted and sentenced the respondent for the offence against the same provision committed on 17 January 1999. Accordingly, the appellant submits that the offence of 17 January 1999 was a previous offence (committed before the offence of 26 March 1999) for which the respondent had already been convicted when the Magistrate came to determine the penalty for the offence of 26 March 1999. On that basis the appellant submits that the offence of 26 March 1999 should have been dealt with as a second offence.
I agree that s 47B(4) can be read as the appellant reads it.
However, there is another approach to this provision that has been applied in this Court. In Ryszawa v Samuels [1969] SASR 158 Hogarth J had to consider the meaning of a similar provision, and a similar submission as to its meaning. He said (at 159-160):
“While a literal reading of the section would seem to justify this approach, it has been long established in other jurisdictions that a person cannot be convicted as for a second offence unless that offence was committed after the conviction for the earlier offence against the same law. See, for example, Christie vBricknell (1895) 21 V.L.R. 71; O’Connor v. Bini (1908) V.L.R. 567; Farrington v. Thomson (1959) V.R. 286; O’Hara v. Harrington (1962) Tas. S.R. 165; and Joyce v. Smith (1962) Tas. S.R. (N.C.) 11. These decisions stem from a principle laid down by Coke which has developed into a general principle in the interpretation of statutes that where the legislature imposes an increased penalty for a ‘second offence’, that expression bears the technical meaning of ‘an offence committed after conviction of a first offence’, unless there is some indication in the particular Act under review which raises an inference to the contrary.”
In Samuels v Mackenzie (1979) 23 SASR 595 the provisions of s 47b(3) of the Act came before Mitchell J. That provision was in terms that are relevantly indistinguishable from the provisions of s 47B(4). Mitchell J referred to the decision of Hogarth J, and to the passage that I have cited, and adopted that approach in relation to the provision being considered by her.
As far as I am aware, that approach has been followed consistently by courts of this State.
As the citation from the reasons of Hogarth J demonstrates, that approach has been taken by courts in Victoria and Tasmania, and can be traced back to Coke’s Institutes: see Farrington v Thomson and Bridgland [1959] VR 286 at 288.
I am reluctant to depart from such a long settled interpretation of a statute, particularly when a similar approach has commended itself to courts in other States.
No particular reason was advanced why the Court should depart from the settled interpretation, other than the fact that the meaning that it gives to s 47B is wrong, and does not advance the intention of Parliament to punish second and subsequent offences more severely. But the second of those reasons really assumes the correctness of the submission as to the true meaning of the provision.
I accept that the submission that the settled view of s 47B is wrong has some force. But the submission is by no means compelling. The settled view also has merit. In my opinion there is no good reason to depart from the settled view, that view being reasonably open. Nor is the settled view productive of inconvenience. The rule that it lays down is clear. The interpretation advanced by the appellant could give rise to some anomalies. Offenders in a position like that of the present respondent might be tempted to defer the disposition of their “first offence”, and to have the “second offence” dealt with first, to avoid the consequences of the meaning that the appellant would give to s 47B(4). Complications that might arise from that sort of manoeuvring are unlikely to arise under the settled meaning.
There is another factor. Section 18 of the Acts Interpretation Act 1915 does away with any presumption that the enactment or re-enactment of a provision that has been construed in a particular manner creates a presumption that Parliament has approved that construction. But the fact that Parliament has amended many of the provisions relating to drink driving offences, but has not sought to amend s 47B(4), at least suggests that the settled interpretation has not been seen as giving rise to unsatisfactory results.
For those reasons I am not persuaded that the Court should overrule the earlier decisions. I am content to follow them, and on that basis the main ground advanced in support of the appeal must be rejected.

The penalties

A complaint is made that in relation to the offences of 26 March, the Magistrate imposed a single fine, the amount of which was the minimum that could be imposed for the offence against s 47B(1). The point was made that the other offence committed that day, the breach of s 81A of the Motor Vehicles Act, attracted a maximum fine of $1,250. It was submitted that the fine imposed was inadequate, bearing in mind that it was in respect of the two offences. Effectively, no fine was imposed for the breach of s 81A.
To this is added the complaint that although the Magistrate disqualified the respondent from holding or obtaining a driver’s license for a period of 15 months in respect of the offences of 17 January, and disqualified the respondent from holding or obtaining a driver’s license for a period of six months in respect of the offences of 26 March 1999, the Magistrate ordered that the periods of disqualification be served concurrently. The submission is that this was an inadequate penalty, and amounted to no effective penalty for the offence against s 47B committed on the later date.
The offence of driving on 17 January 1999 while there was present in the respondent’s blood the prescribed concentration of alcohol was a category 3 offence for the purposes of s 47B. As a first offence it attracted a penalty that included an order for license disqualification for a period of not less than twelve months. The like offence of 26 March 1999 was a category 2 offence. As a first offence it attracted an order for license disqualification for a period of not less than six months. These minimum periods of disqualification are provided for by s 47B(3)(a). Sub paragraph (b) goes on to provide:
“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;”
In the present case evidence was not given on oath with a view to satisfying the Magistrate that the offence of 26 March was a trifling offence, nor did the Magistrate so find. Despite that, the effect of the Magistrate’s order is that no effective period of disqualification was imposed in respect of the offence of 26 March.
I accept that the respondent was very fortunate to be dealt with as leniently as he was. However, I agree with the submission by Mr Boucaut, counsel for the respondent, that there are a number of matters that entitled the Magistrate to act as he did.
First of all, there was the fact that the appellant was a young man of 19 years of age at the time of the first group of offences, and had just turned 20 years of age at the time of the second group. The respondent had not committed any previous offences of the relevant kind. There were other mitigating circumstances put forward. As well, the Magistrate was entitled, and obliged, to take into account the principle of totality. The orders made by the Magistrate meant that the appellant faced fines amounting in all to $1,300, court fees and costs of about $400, and a license suspension for a total period of 15 months.
In relation to the fines, the Magistrate was obviously influenced by the impact of the fines and other orders on the respondent’s limited income. The penalty imposed was a lenient one, but in my opinion it was within power. It is appropriate to emphasise, however, that the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 to impose the one penalty for a number of offences cannot be used to bypass the statutory requirement that a court impose a minimum penalty. Nor should the power be used to impose a fine that ignores a clear expression of Parliamentary intent in relation to the penalty to be imposed for a particular offence. I make this point simply because it seems to me that while the Magistrate was entitled to act as he did, he took leniency to its limits by making an order which imposed no effective penalty at all for the breach of s 81A of the Motor Vehicles Act.
In relation to the periods of license disqualification, the first issue is whether the Magistrate had power to make the period of disqualification in respect of the offence of 26 March 1999 concurrent with the period of disqualification in respect of the earlier offence.
Counsel for the appellant accepted that the Magistrate had power to act as he did. I am prepared to act on that concession. Absent a statutory power, express or implied, to order that a period of disqualification is to commence on a future date, a court of summary jurisdiction would have no power to do so: Boehm v Milham (1980) 24 SASR 98 at 104 King CJ. S 169A confers the power to order that a period of disqualification is to take effect from a day subsequent to the making of the order. In Boehm v Milham that section was held to empower a court of summary jurisdiction to make disqualification periods cumulative on one another, even though its main object might have been to empower the Court to defer the commencement of a period of disqualification in the interests of an offender: King CJ at 104.
The power to make an order that a period of disqualification is to be cumulative on another period of disqualification is to be exercised in accordance with the ordinary and well known principles in relation to concurrency and cumulation. In the present case the offences of 17 January 1999 and 26 March 1999 were quite distinct offences. On ordinary principles one would expect the penalties in relation to each of those offences to be cumulative. However, the discretion vested in the Magistrate required him to consider all relevant circumstances, and what I have referred to as the ordinary result is not necessarily the actual result. In particular, the Magistrate was entitled and obliged to take into account considerations of totality.
In my opinion, subject to the impact of s 47B(3)(b), it was within the power of the Magistrate to act as he did. Does the provision to which I have just referred affect that conclusion?
First of all, as I have already noted, counsel for the appellant did not submit that that provision deprives the Magistrate of the power to decline to order, under s 169A, that the second period of disqualification be cumulative upon the first. Although that concession does not bind the Court, I am prepared to act upon it in the absence of any argument to the contrary, although I do not wish to be taken as having decided that the concession is necessarily correct. I have been unable to find any authority bearing on the point, and certainly no authority suggesting that the concession was not properly made.
Assuming that the Magistrate had power to act as he did, as I am prepared to assume, the question remains of whether he properly exercised his discretion, taking into account the terms of s 47B(3)(b). In my opinion the terms of that provision are relevant to the exercise of the power to order that a period of disqualification be cumulative upon another period of disqualification. The provision indicates an intention on the part of Parliament that ordinarily there will be an effective period of disqualification in respect of an offence against s 47B. That is a significant matter to take into account in considering the exercise of the discretion under s 169A. However, it is no more than a matter to be taken into account, along with others, and cannot dictate the result of the exercise of the discretion.
Ordinarily one would expect, in a case of multiple offences against s 47B, that periods of disqualification would be imposed cumulative one upon the other. But in the particular circumstances of a particular case, it is open to a magistrate not to make that order.
In the present case I would not interfere with the decision of the Magistrate. I acknowledge that in this respect as well the Magistrate took leniency to its limits, but there were a number of mitigating circumstances, not all of which I have referred to in my reasons. There is another matter to be taken into account, even if it is the case that the Magistrate exceeded the permissible bounds of leniency. The respondent has now served about two thirds of the period of disqualification imposed upon him. It is some nine months since sentence was imposed. The case has come before the Court on a point of principle on which, in my opinion, the respondent should succeed. The matter now under consideration is of lesser significance. For all those reasons, I would not interfere with the exercise of the Magistrate’s discretion.
In so concluding I have ignored the impact of s 81B of the Motor Vehicles Act 1959. That section requires the Registrar of Motor Vehicles, on becoming aware that a person holding a learner’s permit or a provisional license has committed certain specified offences, including an offence committed by the respondent, to give notice to the person in question that the person is disqualified from holding or obtaining a permit or license for a period of six months commencing on a day specified in the notice: s 81B(2). After the appeal was argued, and at the request of the Court, the Court was informed by letter from the Registrar that an appropriate notice had been given to the respondent informing him that he was disqualified from holding or obtaining a learner’s permit or driver’s license for a period of six months commencing on 31 August 1999. That period of disqualification operates concurrently with the period of disqualification imposed by the Magistrate, and will be contained within it. At the request of the Court the Registrar also informed the Court of his present practice in the exercise of the limited discretion given to him by s 81B. The letter from the Registrar states:
“While the Act does not provide me with any discretion in relation to the issue of the notice, it is generally the practice to vary the effective date of the disqualification so that it runs concurrently with any disqualification imposed by the Court.”
I make no comment on that practice. In saying this I do not intend to reflect adversely upon the practice of the Registrar. I make this point simply because the Court heard no submissions in relation to the practice.
I consider that as a matter of principle the Magistrate was obliged to have no regard to the discharge by the Registrar of his obligation under s81B. That obligation is not part of the sentencing process. It involves the performance of an administrative act, which includes a limited discretion. In principle it seems to me to be a matter quite apart from the sentencing process. As well, as a matter of practicality, a court imposing sentence under the Road Traffic Act is not in a position to make any particular assumption about how the Registrar will exercise the discretion that he has in a given case. I note that the letter from the Registrar refers to a general practice, and a general practice is not necessarily an invariable practice. I also consider that Parliament has sufficiently indicated an intention that, come what may and without regard to what the Court might do, the relevant consequences should flow under s 81B.
I add that s 81B(6) confers a right of appeal against the imposition of the period of disqualification, and confers on the Court hearing the appeal the power to remove the period of disqualification if satisfied that it would result in “undue hardship” to the person disqualified. As well, it is open to an offender to challenge the exercise of the Registrar’s discretion as to the commencement of the period of disqualification in proceedings by way of judicial review, although any such challenge would face obvious difficulties.
For all those reasons I consider that the operation of s 81B is not to be taken into account in considering the appropriateness of the penalty imposed by the Magistrate. The fact that the respondent was exposed to the operation of s 81B is not a reason for a magistrate to impose a lesser penalty than the magistrate would otherwise impose.

Conclusion

The argument of principle advanced by the appellant should not be accepted. As to the penalty imposed, the respondent was fortunate to be dealt with as he was, but in all the circumstances I am not satisfied that it was not open to the Magistrate to proceed as he did. I am not satisfied that the sentences imposed were manifestly inadequate. In my opinion the appeal should be dismissed.

DEBELLE J. I agree that, while in one sense it is not strictly logical, the practice described by Hogarth J in Ryszawa v Samuels [1969] SASR 158 at 159–160 for determining what constitutes a second offence has stood for so long that it should not now be altered. The practice for which the appellant contends could lead to anomalies. For example, the offence which is later in time may be heard and result in a conviction before the second offence which first occurred, or the offences might be heard at different courts at times sufficiently close to prevent one court from being aware of the conviction in the other. It would be an unequal and, therefore, unjust operation of the law if, in the circumstances such as occurred in this case, an offender is dealt with on the footing that he has a previous conviction but that were not so in the other two instances.
I agree with the substance of the reasons of the Chief Justice on the other issues. In doing so, I acknowledge the force of the reasons of Bleby J. Magistrates should have regard to them. In other circumstances, I may have allowed the appeal for the purpose of making the periods of disqualification cumulative. However, the lapse of time in this appeal coming to this Court for hearing has had the consequence that the respondent has now served the greater part of the period of disqualification. It would be extremely harsh now to add a further period of disqualification when the respondent has the expectancy that he will be able to drive in the relatively near future. The respondent was treated very mercifully by the magistrate. He should count himself fortunate. But I am not satisfied this Court should interfere with the orders for disqualification.
I too would dismiss the appeal.

BLEBY J. I agree with the Chief Justice that the Magistrate properly treated the offence committed on 26 March 1999 as not being a second offence for the purposes of s 47B of the Road Traffic Act 1961. I have nothing to add to his reasons.
I also agree, so far as the monetary penalties are concerned, that the Magistrate was lenient to the respondent, but that the fines imposed were within the sentencing discretion of the Magistrate, and should not be interfered with.
However, in my opinion the same cannot be said about the concurrent periods of licence disqualification. Like the Chief Justice, I am prepared to act on the concession that s 47B(3)(b) does not deprive a magistrate of the power to make the periods concurrent, although I, too, would not wish it to be assumed that the concession is necessarily correct.
It seems to be well‑established that without s 169A of the Road Traffic Act, a court has no power to order that a disqualification commence on a future date: Boehm v Milham (1980) 24 SASR 98 at 104. The implication apparent from s 169A is that the commencement of the period of disqualification will normally be on the date of the order, but that the court does have power under that section to order commencement at a later time if the court “is satisfied that reasonable cause exists for doing so”. That section enables, in appropriate circumstances, one period of disqualification to be made cumulative upon another: Boehm v Milham (supra). But the court must still be satisfied that reasonable cause exists for doing so.
Section 47B(3)(a) provides that where a court convicts a person of a category 2 offence (which the second offence in this case was), the court must order that the person be disqualified from holding or obtaining a driver’s licence, in the case of a first offence, for not less than six months. Subsection (3)(b) provides:
“(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.”
Even assuming that that paragraph enables a court to order concurrent periods of disqualification, the overall effect of subsection (3) is to provide that there must be a licence disqualification entered for each conviction. In my opinion, Parliament intends the minimum penalty to be a substantial disincentive to driving a motor vehicle whilst the driver contains the prescribed concentration of alcohol in his or her blood, and has made it clear that the disqualification for each conviction should be served, except in the most unusual case. An example of one such case - that of a trifling offence - is provided for in the paragraph itself. That policy will be frustrated if a person, having committed one offence, is then able to commit a series of similar offences without suffering any further effective period of licence disqualification. It seems to me that in most cases the provisions of s 47B(3)(b) will constitute “reasonable cause” for the purpose of s 169A for making licence disqualifications cumulative, in the ordinary course, for repeat offences under s 47B.
In my opinion, that would be sufficient to require the Court in this case to make the periods of disqualification cumulative, unless there were special circumstances applicable to the respondent which require that they be concurrent. For most people, disqualification from holding or obtaining a driver’s licence will be a hardship. The respondent is no exception. He is employed as an apprentice mechanic in Berri. He lives in Barmera with his mother. He has to rely on others to get to and from work every day, and whilst, as an apprentice, he would normally expect to do all the pick‑ups and deliveries for his employer, his employer was aware that he would be losing his licence and was nonetheless prepared to keep the position open for him. It was not as though loss of his licence would cause loss of his employment.
Furthermore, whilst he was aged 20 at the time, and had no previous convictions, there were circumstances of aggravation. Those circumstances constituted a breach of s81A, Motor Vehicles Act 1959 for which no other punishment has been imposed. He was the holder of a provisional driver’s licence under s 81A of the Motor Vehicles Act. One of the conditions of his licence was that he must not drive a motor vehicle on a road while there is present in his blood any concentration of alcohol at all. That was a condition of which he was or ought to have been fully aware. It was not as though he miscalculated the effect of any alcohol he had drunk. The plain fact of the matter was that he was not permitted to drive after drinking any alcohol. Yet he proceeded to do so in clear disregard of the law.
For all these reasons, in my opinion, the Magistrate erred in making the two periods of disqualification concurrent. I would allow the appeal for the purpose of varying the order of the Magistrates Court to require that the period of licence disqualification in respect of the offence committed on 26 March 1999 commence upon the expiry of the period of disqualification in respect of the offence committed on 17 January 1999.

DEBELLE J. I agree that, while in one sense it is not strictly logical, the practice described by Hogarth J in Ryszawa v Samuels [1969] SASR 158 at 159–160 for determining what constitutes a second offence has stood for so long that it should not now be altered. The practice for which the appellant contends could lead to anomalies. For example, the offence which is later in time may be heard and result in a conviction before the second offence which first occurred, or the offences might be heard at different courts at times sufficiently close to prevent one court from being aware of the conviction in the other. It would be an unequal and, therefore, unjust operation of the law if, in the circumstances such as occurred in this case, an offender is dealt with on the footing that he has a previous conviction but that were not so in the other two instances.
I agree with the substance of the reasons of the Chief Justice on the other issues. In doing so, I acknowledge the force of the reasons of Bleby J. Magistrates should have regard to them. In other circumstances, I may have allowed the appeal for the purpose of making the periods of disqualification cumulative. However, the lapse of time in this appeal coming to this Court for hearing has had the consequence that the respondent has now served the greater part of the period of disqualification. It would be extremely harsh now to add a further period of disqualification when the respondent has the expectancy that he will be able to drive in the relatively near future. The respondent was treated very mercifully by the magistrate. He should count himself fortunate. But I am not satisfied this Court should interfere with the orders for disqualification.
I too would dismiss the appeal.

BLEBY J. I agree with the Chief Justice that the Magistrate properly treated the offence committed on 26 March 1999 as not being a second offence for the purposes of s 47B of the Road Traffic Act 1961. I have nothing to add to his reasons.
I also agree, so far as the monetary penalties are concerned, that the Magistrate was lenient to the respondent, but that the fines imposed were within the sentencing discretion of the Magistrate, and should not be interfered with.
However, in my opinion the same cannot be said about the concurrent periods of licence disqualification. Like the Chief Justice, I am prepared to act on the concession that s 47B(3)(b) does not deprive a magistrate of the power to make the periods concurrent, although I, too, would not wish it to be assumed that the concession is necessarily correct.
It seems to be well‑established that without s 169A of the Road Traffic Act, a court has no power to order that a disqualification commence on a future date: Boehm v Milham (1980) 24 SASR 98 at 104. The implication apparent from s 169A is that the commencement of the period of disqualification will normally be on the date of the order, but that the court does have power under that section to order commencement at a later time if the court “is satisfied that reasonable cause exists for doing so”. That section enables, in appropriate circumstances, one period of disqualification to be made cumulative upon another: Boehm v Milham (supra). But the court must still be satisfied that reasonable cause exists for doing so.
Section 47B(3)(a) provides that where a court convicts a person of a category 2 offence (which the second offence in this case was), the court must order that the person be disqualified from holding or obtaining a driver’s licence, in the case of a first offence, for not less than six months. Subsection (3)(b) provides:
“(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.”
Even assuming that that paragraph enables a court to order concurrent periods of disqualification, the overall effect of subsection (3) is to provide that there must be a licence disqualification entered for each conviction. In my opinion, Parliament intends the minimum penalty to be a substantial disincentive to driving a motor vehicle whilst the driver contains the prescribed concentration of alcohol in his or her blood, and has made it clear that the disqualification for each conviction should be served, except in the most unusual case. An example of one such case - that of a trifling offence - is provided for in the paragraph itself. That policy will be frustrated if a person, having committed one offence, is then able to commit a series of similar offences without suffering any further effective period of licence disqualification. It seems to me that in most cases the provisions of s 47B(3)(b) will constitute “reasonable cause” for the purpose of s 169A for making licence disqualifications cumulative, in the ordinary course, for repeat offences under s 47B.
In my opinion, that would be sufficient to require the Court in this case to make the periods of disqualification cumulative, unless there were special circumstances applicable to the respondent which require that they be concurrent. For most people, disqualification from holding or obtaining a driver’s licence will be a hardship. The respondent is no exception. He is employed as an apprentice mechanic in Berri. He lives in Barmera with his mother. He has to rely on others to get to and from work every day, and whilst, as an apprentice, he would normally expect to do all the pick‑ups and deliveries for his employer, his employer was aware that he would be losing his licence and was nonetheless prepared to keep the position open for him. It was not as though loss of his licence would cause loss of his employment.
Furthermore, whilst he was aged 20 at the time, and had no previous convictions, there were circumstances of aggravation. Those circumstances constituted a breach of s81A, Motor Vehicles Act 1959 for which no other punishment has been imposed. He was the holder of a provisional driver’s licence under s 81A of the Motor Vehicles Act. One of the conditions of his licence was that he must not drive a motor vehicle on a road while there is present in his blood any concentration of alcohol at all. That was a condition of which he was or ought to have been fully aware. It was not as though he miscalculated the effect of any alcohol he had drunk. The plain fact of the matter was that he was not permitted to drive after drinking any alcohol. Yet he proceeded to do so in clear disregard of the law.
For all these reasons, in my opinion, the Magistrate erred in making the two periods of disqualification concurrent. I would allow the appeal for the purpose of varying the order of the Magistrates Court to require that the period of licence disqualification in respect of the offence committed on 26 March 1999 commence upon the expiry of the period of disqualification in respect of the offence committed on 17 January 1999.

[2000] SASC 82

18 May 2000