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Police v Nowak

Police v Nowak

Case [2000] SASC 82 18 May 2000

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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…

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 Nowak

Details

AGLC: Police v Nowak [2000] SASC 82
Case: [2000] SASC 82
Decision Date: 18 May 2000

CaseChat Overview and Summary

The Police appealed against a decision of a Magistrate in the Magistrates Court of South Australia, in which the respondent was convicted of driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol, contrary to s 47B of the Road Traffic Act 1961. The appeal was brought on the basis that the Magistrate erred in failing to treat the offence committed on 26 March 1999 as a second offence. The Police further appealed against the penalty imposed, submitting that the Magistrate imposed inadequate fines and concurrent periods of license disqualification. The Full Court dismissed the appeal, finding that the Magistrate did not err in determining that the offence of 26 March 1999 was not a second offence, and that the penalty imposed was within the sentencing discretion of the Magistrate. The Court held that the settled interpretation of s 47B(4) of the Road Traffic Act 1961 should not be departed from, and that the Magistrate was entitled to take into account the principle of totality in imposing the penalty. The Court held that the Magistrate had the power to make the periods of disqualification concurrent, and that it was not open to the Court to interfere with the Magistrate’s exercise of discretion. The Court held that the operation of s 81B of the Motor Vehicles Act 1959 was not to be taken into account in considering the appropriateness of the penalty imposed by the Magistrate.

Orders