Police v Pfeiffer

Case [2025] SASC 155

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeal)

POLICE v PFEIFFER

[2025] SASC 155

Judgment of the Honourable Justice Gray (ex tempore)

2 September 2025

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN

TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES - USE OF INTOXICATING LIQUOR OR DRUGS

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING UNDER INFLUENCE OF INTOXICATING LIQUOR OR A DRUG - SENTENCE AND PENALTY

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION

This is a Crown appeal concerning a sentence imposed in the Magistrates Court for an offence contrary to s 47BA(1) of the Road Traffic Act 1961 (SA). The penalty for a first offence contrary to that provision consisted of a fine of not less than $900 and not more than $1,300, and a mandatory licence disqualification period of not less than six months.

The penalty imposed by the learned Magistrate comprised of a $400 fine and no conviction was recorded, on the basis that the offence was an ‘expiable’ one.

The appellant complains that the learned Magistrate erred by not dealing with the offence as a ‘first offence’ and, therefore, erred by failing to impose a mandatory licence disqualification period, pursuant to s 47BA(4) of the Road Traffic Act 1961 (SA), and by failing to impose the mandatory minimum fine of $900 without reference to s 25 of the Sentencing Act 2017 (SA). The appellant submitted that the respondent should be resentenced on appeal.

The respondent submits that the learned Magistrate’s sentence was not affected by error.

On a resentence, the appellant submitted that the mandatory six-month licence disqualification period and a $900 fine should be imposed. No submission was made as to whether a conviction should be recorded.

The respondent on resentence contended that the offence was ‘trifling’ pursuant to s 47BA(4)(b) of the Road Traffic Act 1961 (SA) and gave evidence on oath. It was also submitted that no conviction ought to be recorded, having regard to s 24 of the Sentencing Act 2017 (SA).

Held, allowing the appeal and resentencing:

1.The matter ought to have been dealt with as a ‘first offence’ pursuant to s 47BA of the Road Traffic Act 1961 (SA): [26];

2.The mandatory licence disqualification period should have been imposed and could not be reduced, mitigated or substituted in any way other than in accordance s 47BA(4)(b) of the Road Traffic Act 1961 (SA): [27]-[28];

3.      There was error in dealing with the offence as an ‘expiable’ one: [30];

4.      On a re-exercise of the sentencing discretion:

4.1.    The offence was an ordinary example of the offence and did not constitute a trifling offence: [37];

4.2.    There is no good reason to reduce the fine below the minimum penalty of $900: [40];

4.3. There is no support…

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Police v Pfeiffer [2025] SASC 155
Case
[2025] SASC 155
Decision Date

CaseChat Overview and Summary

The appeal in Police v Pfeiffer concerns the sentencing imposed by a Magistrate on the respondent for driving under the influence of intoxicating liquor or a drug. The appellant, representing the Crown, appealed against the sentence on two grounds. Firstly, the appellant argued that the Magistrate failed to impose the mandatory licence disqualification period as required by the relevant statute. Secondly, the appellant contended that the Magistrate reduced the minimum fine without proper authority. The appeal was heard in the Supreme Court of South Australia.

The legal issues before the court were whether the Magistrate erred in failing to impose the mandatory licence disqualification period and whether the Magistrate erred in reducing the minimum fine without proper authority. The court had to interpret the relevant provisions of the Magistrates Court Act 1991 (SA) and the Sentencing Act 2017 (SA) to determine if the Magistrate's actions were in accordance with the law.

The court found that the Magistrate did indeed err in both respects. Regarding the licence disqualification, the court held that the statutory language required the offence to be treated as a first offence, which mandated a specific disqualification period. The court also found that the Magistrate erred in reducing the fine based on a mistaken belief that the matter should be treated as an expiation rather than a first offence. The court concluded that the Magistrate did not have the discretion to reduce the fine in this manner. The court allowed the appeal and re-exercised the sentencing discretion, imposing a six-month licence disqualification and the minimum fine.

The Supreme Court of South Australia allowed the appeal and re-sentenced the respondent, imposing a six-month licence disqualification and the minimum fine of $900.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals, pursuant to s 42(1) of the Magistrates Court Act 1991 (SA), on two grounds. Firstly, the learned Magistrate erred in failing to impose the mandatory licence disqualification period, as required by s 47BA(4) of the Act. Second, the learned Magistrate erred in reducing the minimum fine of $900 without reference to s 25 of the Sentencing Act 2017 (SA) (‘the Sentencing Act’).Background and nature of the appeal The subject offending occurred on 12 November 2024 when the respondent was directed to submit to an oral fluid test whilst driving on Salisbury Highway. A positive result for cannabis was returned, and subsequently a sample was collected from the respondent and submitted for forensic testing. That testing indicated that present in the respondent’s oral fluid was THC. An expiation notice for an offence contrary to s 47BA of the Act was issued to the respondent on 22 November 2024.[1][1] Appellant’s Written Submissions (FDN 8) (‘AWS’) at [11]-[13]; Affidavit of Harald Josef Scherwitzel sworn 25 July 2025 (FDN 7) (‘Scherwitzel Affidavit’) at [6]. On 21 January 2025, the respondent elected to be prosecuted in respect of the offence. An information dated 5 March 2025 was laid in the Magistrates Court in respect of the offence alleged to have been committed by the respondent. The matter was first heard on 8 April 2025 but was adjourned to enable the respondent to obtain legal advice.[2][2] AWS at [14]-[17]; Scherwitzel Affidavit at [7]-[9]. The matter was next before the Court on 1 May 2025. The respondent submitted that he had elected to be prosecuted so that he could make sure the matter would not appear on his record, due to his working in the technology field in schools, hospitals, and, sometimes, military bases.[3] The respondent indicated to the effect that he had medical certificates for medicinal cannabis and that the testing was made 24 hours later. The learned Magistrate was informed by the prosecutor that this was the first offence and expiation in respect of the respondent.[4][3] Scherwitzel Affidavit at [11(c)].[4] AWS at [18]; Scherwitzel Affidavit at [11(a)-(e)]. The sentencing remarks of the learned Magistrate record as follows:[5]Mr Pfeiffer, you have pleaded guilty to a drug drive offence which occurred on 12 November 2024 on Salisbury Highway at Salisbury Downs. You come before the court having never had a previous expiation notice for drug drive. The question is whether you are deemed a first offender under s. 47BA of the Road Traffic Act.Prosecution submit that you are deemed a first offender because you elected to be prosecuted. After perusing the section, I have decided that that section refers only to the determination of first, second, third or subsequent offences. This offence, in my view, is not deemed a first offence as you have not been expiated previously under s.47BA(6). PROSECUTION: Your Honour, in regards to the ILOL, I can confirm the defendant is correct. His ILOL has been cancelled. He has not been disqualified. If that is defective, then I am not going to impose a disqualification if that was cancelled.I impose without conviction so as to treat this matter as if it were an expiation. There will be a $400 fine, victim of crime levy and prosecution fee only. I do not find that this offence is a first offence under s.47BA. I am doing something quite unorthodox here but I think if prosecution want to appeal they can and the decision about the interpretation of that section of the Act can be addressed in a higher jurisdiction.[5] Appeal Book (FDN 10) (‘AB’) (Remarks on Penalty of Magistrate Browne, 1 May 2025) at 5

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J
I, therefore, find ground 2 made out and I would also allow the appeal on that ground. Conclusions on grounds of appeal I allow the appeal against sentence. Having found error, I consider, having regard to the need for finality and the interests of justice, it is preferable for me, rather than to remit the matter to the Magistrates Court, to re-exercise the sentencing discretion. Resentence In re-sentencing the respondent, I have had regard to all of the submissions advanced by the parties and to the evidence given by the respondent before this Court. I have considered all of the submissions advanced, including the submissions concerning the trifling application.Licence disqualification period On the appeal, the respondent gave evidence in respect of whether the offence was ‘trifling’, pursuant to s 47BA(4)(b) of the Act. Submissions were also advanced by the respondent in support of that application. On the appeal, the respondent gave evidence in respect of whether the offence was trifling pursuant to s 47BA(4)(b) of the Act. The submissions advanced by the respondent in support of the application were that his circumstances were exceptional. The respondent indicated that he drove a limited distance of between 500m and 1km. The respondent indicated that he drove for work purposes and he was required to maintain his driver's licence to maintain his employment contracts. The respondent indicated that this was an isolated incident and submitted that licence disqualification was a harsh and disproportionate penalty and would cause undue hardship due to his need to maintain his employment. The respondent sought to distinguish the cases relied upon by the appellant on the basis that the cases cited involved blood alcohol readings which were high.[20][20] Police v Garnett [2017] SASC 125 (Stanley J); Police v Davidson (Supreme Court of South Australia, Nyland J, 31 October 1997). The appellant submitted that the offence was not trifling and, amongst other things, contended that the offence in the case before this Court was an ordinary example of the offence, and that an ordinary example of an offence was not capable of satisfying the ‘trifling’ test in s 47BA(4)(b) of the Act. Having regard to the principles in Siviour-Ashman v Police[21] and having regard to the need to assess the conduct of the offending and circumstances surrounding it as a whole, I find that that the offence was not trifling. I accept the appellant’s submission that the offence involved consumption of a cannabis product, which led to a positive reading at a roadside random breath testing station, and that this is an ordinary example of the offence. [21] Siviour-Ashman v Police [2003] SASC 29; (2003) 85 SASR 23 at 27-31, [23]-[42] (Doyle CJ). See also Police v Garnett [2017] SASC 125 at [7]-[8] (Stanley J) and Police v Davidson (Supreme Court of South Australia, Nyland J, 31 October 1997) at 1-2. I therefore impose a licence disqualification period of 6 months, in accordance with s 47BA(4)(a)(i) of the Act.Fine

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

The respondent submitted that the learned Magistrate did not err in reducing the fine below the minimum.ConsiderationGround 1 I accept the submission of the appellant that an ordinary reading of the statutory language of ss 47BA(5)-(6) of the Act indicates that it is sufficient that the respondent was served with an expiation notice to satisfy the requirement that ‘the person has first been given an expiation notice’. The withdrawal as a result of the legislative machinery[19] does not affect the fact that the expiation notice had been issued in the first instance.[19] Expiation of Offences Act 1996 (SA) s 8(3). Applying an ordinary reading of the legislation, and having regard to circumstances of this case, this matter should have been dealt with as a ‘first offence’ within the meaning of s 47BA. The matter being a ‘first offence’ within the meaning of that provision, the question arises as to whether a power existed for the learned Magistrate to reduce the mandatory licence disqualification period other than in accordance with s 47BA(4)(b) of the Act. I accept the submission of the appellant that once a plea of guilty is entered, or a finding of guilt is made, there is no discretion to reduce, mitigate or substitute the penalty in any way other than in accordance with the trifling provision in s 47BA(4)(b) of the Act. This interpretation follows from the mandatory language of the Act. Accordingly, I find ground 1 made out and allow the appeal on that ground.Ground 2 I find there is an error of principle in the manner in which the fine was reduced. In this case, the learned Magistrate reduced the fine consequent upon the erroneous determination that the matter was to be dealt with as if it were an expiation and not a first offence. I, therefore, find ground 2 made out and I would also allow the appeal on that ground. Conclusions on grounds of appeal I allow the appeal against sentence. Having found error, I consider, having regard to the need for finality and the interests of justice, it is preferable for me, rather than to remit the matter to the Magistrates Court, to re-exercise the sentencing discretion. Resentence In re-sentencing the respondent, I have had regard to all of the submissions advanced by the parties and to the evidence given by the respondent before this Court. I have considered all of the submissions advanced, including the submissions concerning the trifling application.Licence disqualification period On the appeal, the respondent gave evidence in respect of whether the offence was ‘trifling’, pursuant to s 47BA(4)(b) of the Act. Submissions were also advanced by the respondent in support of that application. On the appeal, the respondent gave evidence in respect of whether the offence was trifling pursuant to s 47BA(4)(b) of the Act. The submissions advanced by the respondent in support of the application were that his circumstances were exceptional. The respondent indicated that he drove a limited distance of between 500m and 1km. The respondent indicated that he drove for work purposes and he was required to maintain his driver's licence to maintain his employment contracts. The respondent indicated that this was an isolated incident and submitted that licence disqualification was a harsh and disproportionate penalty and would cause undue hardship due to his need to maintain his employment. The respondent sought to distinguish the cases relied upon by the appellant on the basis that the cases cited involved blood alcohol readings which were high.[20][20] Police v Garnett [2017] SASC 125 (Stanley J); Police v Davidson (Supreme Court of South Australia, Nyland J, 31 October 1997).