Police v Plunkett - [2023] SASC 132

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
POLICE v PLUNKETT
[2023] SASC 132
Judgment of the Honourable Justice McIntyre
21 September 2023
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING UNDER INFLUENCE OF INTOXICATING LIQUOR OR A DRUG - SENTENCE AND PENALTY
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - EVIDENCE - BLOOD TEST AND ANALYSIS
The Commissioner of Police appeals from a decision of the Magistrates Court of South Australia.
The Commissioner of Police charged the respondent under s 20 of the Australian Road Rules (“ARR”) (count 1) and s 47EAA (9) of the Road Traffic Act 1961 (count 2). He pleaded guilty and was sentenced for those offences on 22 March 2023. The appellant appeals the sentence imposed for count 2, contending the sentencing Magistrate erred in finding that the offence the subject of count 2 was trifling and in imposing less than the mandatory minimum license disqualification period. The appellant contends that the respondent’s sentence needs to be varied as otherwise it sends a message to the public the Court can impose a sentence outside of its power.
Held:
1. The appeal is dismissed, whilst the original sentence is indicative of error it would be unfair to revisit the sentence.
Australian Road Rules (SA) s 20; Road Traffic Act 1961 (SA) s 47EAA (9), s 47EAA (16); Road Traffic (Miscellaneous) Regulations 2014, referred to.
Frank v Police [2007] SASC 288; Playford v Police [2017] SASC 26; Police v Fargher [1999] SASC 206; Police (SA) v Ludlow [2008] SASC 43; Police v Malycha [2013] SASC 169; Police v Watson [2016] SASC 92; R v Saleh [2017] SASCFC 75; Siviour-Ashman v Police (2003) 85 SASR 23, considered.

POLICE v PLUNKETT
[2023] SASC 132
McIntyre J:
Introduction

By Information dated 7 December 2022 the respondent, William John Plunkett, was charged with an offence under s 20 of the Australian Road Rules (“ARR”) (count 1), and a further offence under s 47EAA (9) of the Road Traffic Act 1961 (“RTA”) (count 2). He pleaded guilty and was sentenced for those offences on 22 March 2023.
The appellant, the Commissioner of Police, appeals the sentence imposed for count 2. It is contended that the sentencing Magistrate erred in finding that the offence, the subject of count 2, was trifling and in imposing less than the mandatory minimum license disqualification period.
For the reasons that follow I dismiss the appeal.
Background
The charges arise out of an incident on 2 December 2022, where the respondent was stopped by police after travelling about 117km/h in a 100km/h zone on Tantanoola Road, Tantanoola. The respondent was then required to submit to an alcotest, which indicated a negative response, and a drug screening test, which indicated a positive…

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 Plunkett

Details

AGLC: Police v Plunkett [2023] SASC 132
Case: [2023] SASC 132
Decision Date

CaseChat Overview and Summary

The Police appealed against the sentence imposed on Mr. Plunkett, who was convicted of driving without a valid licence and failing to provide an oral fluid sample when directed. The appeal centred on the Magistrate's decision to deem the case trifling and impose a nominal penalty of $250 without conviction. The key issue was whether the Magistrate erred in considering the case trifling, given the respondent's refusal to provide an oral fluid sample despite being informed of the consequences and offered an alternative blood test.

The Court considered whether the Magistrate erred in finding the case trifling. The Magistrate noted that Mr. Plunkett was on medication for a lung disease that causes a lack of saliva, had a phobia of needles, and suffered from anxiety, which made it difficult for him to comply with the direction to provide an oral fluid sample or a blood test. The Court acknowledged the Magistrate's observations regarding the respondent's medical condition, phobia, and anxiety as relevant factors that could constitute good cause for non-compliance. The Court held that the Magistrate did not err in considering the case trifling given the respondent's genuine difficulties in complying with the direction.

The Court found that the Magistrate did not err in considering the case trifling and imposing a nominal penalty without conviction. The Court held that the Magistrate appropriately considered the respondent's medical condition, phobia, and anxiety, which constituted good cause for his non-compliance. The Court also noted that the imposition of a nominal penalty without conviction was an appropriate outcome given the circumstances of the case.

The appeal was dismissed. The Court held that the Magistrate did not err in considering the case trifling and imposing a nominal penalty without conviction. The Court found that the Magistrate appropriately considered the respondent's medical condition, phobia, and anxiety, which constituted good cause for his non-compliance.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow I dismiss the appeal. Background The charges arise out of an incident on 2 December 2022, where the respondent was stopped by police after travelling about 117km/h in a 100km/h zone on Tantanoola Road, Tantanoola. The respondent was then required to submit to an alcotest, which indicated a negative response, and a drug screening test, which indicated a positive result. Following this, the police officer’s body worn camera footage[1] indicates that, at approximately 1:36 pm, the officer gave a direction to the respondent to supply a sample of his oral fluid. The respondent was initially cooperative and placed the swab under his tongue. However, at approximately 1:41 pm the respondent removed the swab from his mouth and refused to comply with instructions to put it back in. The respondent said that he was taking medication that dried up the fluid in his body and that he was unable to wet the swab. [1] Affidavit of Rebecca Lee Ruiz sworn on 27 June 2023 exhibit RLR-1. The police officer read the prescribed oral advice to the respondent (“the advice”).[2] This informed the respondent that it is an offence to fail to provide an oral sample when directed without good cause and outlined the consequences of non-compliance. The advice indicated that it was a defence if the respondent had a physical or medical condition that prevented him from providing oral fluid but only if he asked for a blood sample to be taken instead. The police officer read the advice twice before again directing the respondent to supply a sample of his oral fluid. The respondent declined, saying he couldn’t wet the swab and that he wasn’t going to have a blood test. [2] Road Traffic (Miscellaneous) Regulations 2014; Reg 19.; Sch. 1 Form 3. The police officer cautioned the respondent and then asked if the respondent had any reason for refusing the direction to provide an oral sample. The respondent said he did not understand. The police officer then asked him if he had any reason or a physical or medical condition for refusing to comply with the direction. The respondent replied that he did but did not elaborate. He was not asked any questions on that topic. The police officer advised the respondent for a third time that it is an offence to fail to provide an oral sample when directed without good cause. The police officer further advised the respondent that he could only raise the defence that he had a physical or medical condition that prevented him from providing oral fluid if he asked for a blood sample to be taken instead. The respondent was again offered the opportunity to submit to a blood test instead of the oral test; he again refused to undergo a blood test. He did not state any reason for that nor was he asked for one. The respondent was immediately disqualified from driving. The Hearing On 22 March 2023, the matter was listed for hearing at the Mount Gambier Magistrates Court. The respondent was unrepresented. He informed the Magistrate that he had medical evidence and was going to contest count 2. Following an exchange, which I will deal with later in these reasons, the Magistrate arranged for the respondent to see the duty solicitor after which he entered a plea of guilty to both counts.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The respondent further made submissions during the course of the appeal to the effect that his understanding was that the trifling application and reduction of sentence was part of a “deal” if he entered pleas of guilty to both counts.[8] [8] T9 – 11.Consideration This is a Crown appeal against sentence. No sentence of imprisonment was imposed, all that is required is that the appellant demonstrate an error by the sentencing Magistrate.[9] It is not necessary for the appellant to go further and demonstrate that the case is rare and exceptional however there may occasionally be situations that arise where it would be unfair to vary a sentence even though it was made in error.[10] [9] Police v Watson [2016] SASC 92 [11]. [10] Police (SA) v Ludlow [2008] SASC 43 and Police v Fargher [1999] SASC 206 [18].Was there an error? The Magistrate delivered ex tempore remarks on penalty following submissions. In considering those remarks I bear in mind that such remarks are not to be read with the same scrutiny that might apply to written reasons for judgment[11] and that this is particularly so when considering the remarks of a Magistrate conducting a busy list.[12][11] R v Saleh [2017] SASCFC 75 at [35][12] Playford v Police [2017] SASC 26 at [23] and Frank v Police (2007) 98 SASR at [62] The Magistrate set out the background to the offence noting that documentation had been provided confirming that the respondent was on medication for a lung disease that causes him to have a lack of saliva. The Magistrate also noted the oral evidence of the respondent that he had a phobia of needles, that he suffered anxiety and that he needed time to build up the courage to undertake a blood test. The Magistrate went on to say:I have heard your evidence in relation to why you did not provide a second swap (sic) to the officer in question after having had a swab in your mouth for five minutes where that was not sufficient. You did not avail yourself of a blood test due to your phobia of needles, lack of understanding of the process at the time and I also note that you suffer from anxiety. At the time you were not aware of the law. You did not understand good cause defence that is clear from your evidence today. The importance of a blood test in lieu of an oral fluid sample was not understood by you on the day in question, nor today during your evidence. In any case, you are in a category of persons where, providing oral fluid or a blood test is very difficult for you and so you come into a category that I consider satisfies good cause for not provide either a blood test or oral fluid. Her Honour then went on to find as follows: Pursuant to s 47EAA (16)(b) of the Road Traffic Act I find that this matter is trifling. Trifling in the sense that you have good reasons or cause why you could not submit to an oral fluid analysis and why you could not submit at the time to a blood test which would have had to be taken very promptly after these events which was not possible due to your phobia with needles.