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 132McIntyre 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 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.
Submissions in mitigation of penalty were made on behalf of the respondent. The duty solicitor contended that count 2 was a trifling offence. The respondent gave evidence on oath in support of that application. In summary, the respondent said that he was unable to provide an oral fluid sample due to dryness of mouth caused by various medications. When the respondent was presented with the opportunity to complete a blood test in the alternative of an oral fluid sample, he refused. He stated that he has a phobia of needles, and that he suffers from anxiety. The respondent further stated that he was unaware of the law and/or processes in relation to the provision of oral fluid samples. The combination of these factors was said to be the reason he was unable to supply a sample of oral fluid and also why he declined a blood test. Finally, the respondent gave evidence about his personal circumstances including that he suffered a heart attack some six months earlier, that he lived in rural South Australia and was required to drive to Millicent and Mount Gambier and, on occasion, Adelaide for his and his wife’s medical needs.
Following submissions and evidence, the Magistrate delivered ex tempore reasons. Relevantly for the present appeal, she found that the s 47 EAA(9) offence was trifling. The respondent had been subject to a licence disqualification from 2 December 2022. The mandatory disqualification period was no less than 12 months. The Magistrate reduced the mandatory period of licence disqualification to the rising of the Court. The total period of disqualification was therefore three months and 20 days. This is eight months and 11 days less than the mandatory minimum period.
The legislation
Section 47EAA of the RTA largely mirrors s 47E, the provision relating to police powers to administer alcotests and breath analyses. It provides the power to police to require motorists to submit to a drug screening test where the person has submitted to an alcotest or breath analysis under s 47E. Where the drug screening test indicates the presence of a prescribed drug the police officer may require the motorist to submit to an oral fluid test. Failure or refusal to comply with a reasonable direction will result in penalties of fines and licence disqualification.[3]
[3] Road Traffic Act 1961 (SA) s 47EAA(9) & (16).
A defence of good cause for refusal is provided in s 47EAA(10)(c) but cannot be raised unless the motorist has had a blood sample taken under s 47EAA(11) or has made a request for a blood test that the police either failed to facilitate or a medical practitioner was not available or the taking of blood was not possible or reasonably advisable due to the physical or medical condition of the person.[4]
[4] Road Traffic Act 1961 (SA) s 47EAA (14)
In circumstances where there is a conviction for a breach of s 47EAA(9), as in the present case, the following subsection of s 47EAA is relevant:
(16)If a court convicts a person of an offence against subsection (9) or (9a), the following provisions apply:
(a)the court must order that the person be disqualified from holding or obtaining a driver's licence—
(i)in the case of a first offence—for such period, being not less than 12 months, as the court thinks fit; or
(ii)in the case of a subsequent offence—for such period, being not less than 3 years, as the court thinks fit;
(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 the court may order a period of disqualification that is less than the prescribed minimum period but not less than one month;
This was the respondent’s first offence of this nature, and he gave evidence on oath. The Magistrate was satisfied on the basis of that evidence that the offence was trifling. The main issue on this appeal is whether she was correct to so find.
The appellant’s submissions
The appellant submits that, in pleading guilty to the offence, the respondent accepted that he refused to comply with a lawful direction without a proper explanation provided as to why that compliance did not occur. The appellant accepts that the respondent did tell the police officer that he had difficulties with the provision of the oral fluid sample, but at no point did he indicate medical difficulties in relation to the blood test. It is said that a bare refusal to comply, such as that given by the respondent, comprises a deliberate breach of the law which is not a proper basis for the offence to be declared as trifling.
The appellant contended that the circumstances arising on 2 December 2022 are a normal or typical example of this type of offending and should not therefore, be regarded as trifling because it encompasses an ordinary incident of the conduct parliament intended to proscribe.[5]
[5] Police (SA) v Ludlow [2008] SASC 43.
Further, the appellant contends that the personal circumstances of the respondent do not justify the exercise of the discretion not to give effect to the statutory requirement. Whilst the respondent gave evidence of assisting his wife, he gave no evidence in either the Magistrates Court, or this appeal, as to whether there are any other people who can assist.
The respondent’s submissions
The respondent was unrepresented on the appeal. He invited the Court to view the police officer’s body worn camera footage as this would show that he was cooperative with the police officer and did three tests; the alcotest, which was negative, the presumptive drug test which was positive and then the saliva test.
The respondent says that he did the saliva test but after having the swab in his mouth for some time he took it out. The police officer told him to put it back in his mouth. He was hot, feeling sick, he couldn’t breathe, and he had no saliva left. The respondent said he told the officer he had a medical issue, but the police officer “didn’t seem to care” about it and did not question him about his medical condition.
The respondent says he did not refuse to do the test. He did three tests, but the problem seems to be that he didn’t do the last test exactly how the police officer wanted him to.[6] The respondent agreed that he was offered a blood test instead of the saliva test but said he was terrified and did not want to tell the policeman that he feared needles because he did not want to look like “an idiot”. The respondent contended that the Magistrate was right because he didn’t refuse to do the test; he tried to do it but did not do it as long as the police officer wanted. The respondent submitted that it was not right that he should get the same penalty as someone that “just outright says no.”[7]
[6] T21.
[7] T23.
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.
The above passages and the use of the term “good reasons or cause” suggest that the Magistrate may have conflated the question of whether the respondent had a defence to count 2 under s 47EAA(10)(c) with a consideration of the question of whether the offence was trifling under s 47EAA(16)(b).
The respondent had pleaded guilty to the offence, in effect conceding that there was no good cause for his refusal or failure to comply with the lawful direction of the police officer. Accordingly, the only consideration for the Magistrate was whether the offence could properly be characterised as “trifling’ thus enlivening the Court’s discretion to reduce the minimum disqualification period it must otherwise impose.[13]
[13] Siviour-Ashman v Police (2003) 85 SASR 23.
The word “trifling” is not defined in the Act. There are several decisions on this issue which are helpfully summarised by White J in Police v. Ludlow.[14]
[14] Police (SA) v Ludlow [2008] SASC 43 [13].
(a)the word “trifling” in s 47B of the RTA is used to mean of slight importance, insignificant or of little moment;
(b)the focus of the Court’s consideration must be on the conduct constituting the offence but regard may also be had to the circumstances which explain how the offence came to be committed;
(c)regard should be had to the purpose of s 47B, ie, the promotion of safe driving conditions;
(d)an offence which is a normal or typical example of its type will not be trifling. Section 47B(3)(b) must be understood as intended to deal with the unusual or exceptional case, the circumstances of which call for the usual minimum to be put to one side. Campbell v Fuss was such a case as the defendant, who had not earlier been driving the vehicle, was intending only to adjust the position in which it was parked;
(e)a lack of realisation by the defendant that he/she had or might have the prescribed concentration of alcohol is generally not relevant, but a soundly based belief falsified by events over which the defendant had no control may be relevant;
(f)a belief that circumstances exist justifying the conduct engaged in might make an offence trifling, eg, driving in necessitous circumstances to fulfil some humanitarian purpose;
(g)it has been said that when the breach is deliberate it can rarely be described as trifling but this proposition may not be applicable when the driving is for some humanitarian or other urgent purpose.
[Citations omitted]
Whilst the offence under consideration in Ludlow was s 47B of the Act the considerations identified by White J are equally relevant to the present case. I therefore bear those matters in mind as I consider this matter.
The purpose of s 47EAA is to enable police officers to require appropriate testing where they believe on reasonable grounds that a person has been driving under the influence of drugs or alcohol. The rationale for this in terms of public safety is obvious. In this matter the respondent had tested positive on the drug screening test. There was therefore a reasonable basis for the police officer to proceed with the oral fluid test. The respondent entered a plea of guilty admitting that he had refused to comply with a lawful direction to provide that test. Parliament has provided a defence for circumstances where a person is unable to comply by reason of a medical or physical condition. It was not appropriate for the sentencing Magistrate to find that the respondent’s offence was trifling on grounds which, if accepted, would have constituted a defence. The proper course was to have declined to accept the plea.
What remained, in the absence of a defence under s 47EAA(10), was the respondent’s refusal to comply without proper excuse. This is a deliberate breach of the law which could rarely be described as trifling.[15] Likewise, absent the defence, the offence is a usual or typical example of the offence. The personal circumstances of the respondent did not affect the consideration of the jurisdictional fact that the offence was trifling. His personal circumstances were only relevant to the discretion to reduce the period of disqualification once the jurisdictional fact was established to the satisfaction of the Court.
[15] Police (SA) v Ludlow [2008] SASC 43 and Police v Malycha [2013] SASC 169 [23].
The appellant has therefore demonstrated an error on the part of the sentencing Magistrate.
Should the sentence be varied?
The proper role for prosecution appeals on sentence is to enable the Courts to establish and maintain adequate sentencing standards and uniformity of sentencing. The appellant says that if the respondent’s sentence is not varied it will send a message to the public that the Court can impose a sentence outside of its power and that this would shake the public confidence in the Courts and the administration of justice. I accept the respondent’s contention that where the legislature has prescribed minimum non-custodial penalties, and there has been an error at first instance in failing to impose that minimum penalty, it will be rare for an appellate court not to impose that minimum penalty. It is said that there is insufficient evidence for the Court to be satisfied that this matter fits into that rare category. I do not agree.
The circumstances in which the respondent came to enter his plea of guilty demonstrate that he was persuaded to that course of action for two reasons. First, because of what he was told about the good cause defence and second, because of what he understood was a “deal”.
The affidavit of the police prosecutor, Darren Keding,[16] sets out the matters leading to the entry of the respondent’s pleas of guilty. The prosecutor confirmed he had received the respondent’s medical evidence but said that it was the prosecution position that the good cause defence was not made out in relation to count 2. The medical evidence confirmed the respondent’s inability to provide an oral fluid sample, but the prosecution contended that the defence was not available in circumstances where the respondent had refused to provide a blood sample. The respondent then told the Magistrate that he was terrified of blood tests and asked whether the Court wanted him to get a medical certificate proving that. The prosecutor’s affidavit sets out what then occurred as follows:
…
(e)Magistrate Kossiavelos then asked me if the respondent would still have a defence if he could provide medical evidence that he could not reasonably have a blood test. I told the Court that without a blood test he does not have a defence, and that the respondent was provided with that advice from the police officer at the time.[17]
[16] Sworn on 27 June 2023.
[17] Affidavit of Darren John Keding sworn on 27 June 2023 at para 10 (e).
This is an inaccurate statement of the law. What the respondent was asserting in this case was that he could not provide an oral fluid sample by reason of his medical condition. This is capable of constituting a defence for his failure to comply with the direction. He could not however raise that defence unless he submitted to a blood test under s 47EAA(14) or fell within one of the exclusions set out in that subsection. Relevantly, s 47EAA(14)(c) provides that the defence may still be raised if the taking of blood was “not possible or reasonably advisable due to the physical or medical condition of the person”. In other words, if the respondent was able to provide medical evidence establishing that it was not possible or reasonably practicable for him to provide a blood sample then he could still raise the good cause defence in relation to his failure to provide an oral fluid sample. The Magistrate did not correct this misstatement of the law.
Following this, the prosecutor’s affidavit indicates that an exchange took place between the Magistrate and the duty solicitor in the absence of the respondent.
(m)Magistrate Kossiavelos told the duty solicitor that she wanted his help as an officer of the Court. Her Honour explained that the respondent suffers from anxiety and was ‘quite anxious at the moment’. Magistrate Kossiavelos went on to set out the charges before the Court and how the respondent was pleading guilty to count 1 and not guilty to count 2.
(n)Magistrate Kossiavelos set out that count 2 was under s 47EAA(9) of the Road Traffic Act, and the respondent had received an instant loss of licence, and that ‘he was also up to six months for a first offence’. Magistrate Kossiavelos told the duty solicitor that the respondent had provided medical evidence to substantiate that he has difficulties providing oral fluid, and that she had said he needed to provide a blood test, to which the respondent says that is also something he is not capable of doing but could get medical evidence about that. Her Honour noted that the respondent had already served three months licence disqualification for the offence.
(o)Magistrate Kossiavelos said that if this was his first offence, she could consider whether the offence was trifling, or whether ‘there were circumstances that would allow the Court to find proper grounds.
(p)Her Honour then asked the duty solicitor to speak to the respondent and tell him what she was proposing and ‘perhaps help him with that application’. She told the duty solicitor to tell the respondent that she had directed the duty solicitor to speak to the respondent.
(q) We then had another short adjournment.
(r)The matter was called back on. The duty solicitor told the Court that the matter could resolve in the way that Magistrate Kossiavelos had proposed and that he would be assisting the respondent.
(s)The duty solicitor said that a plea could be entered through him. Magistrate Kossiavelos then confirmed that guilty pleas had been entered.[18]
…
[18] Affidavit of Darren John Keding sworn on 27 June 2023 at para 10 (m) –(s).
It is also plain from what the respondent said in his submissions on the appeal that he understood that a “deal” had been offered and that this misunderstanding was the reason he pleaded guilty to count 2 and abandoned his defence. Whilst it is clear that the respondent was not offered “a deal” to plead guilty, the duty solicitor was told about the Magistrate’s likely approach in the event of a plea of guilty. The indication was that the Magistrate would consider whether his offence was trifling or whether there were circumstances that would allow the Court “to find proper grounds”. It is unclear what is meant by this latter comment, but it is implicit in what was said that the Magistrate was giving an indication that there might be some scope for leniency if the respondent entered a plea of guilty to count 2.
The respondent was misinformed about the law relating to his ability to raise a good cause defence for failing to provide an oral fluid sample. He thought he had been offered a “deal”. In those circumstances the respondent abandoned his proposed defence and pleaded guilty to count 2. It is of course not possible to know what the outcome would have been had the respondent not altered his plea. It appears that the medical evidence concerning his inability to provide an oral sample was accepted by the prosecution. The respondent may have been able to provide similar evidence about undergoing a blood test. He was deprived of the opportunity to do so given his change of plea.
I refer to the comments of Perry J in Police v Fargher[19]
Here it seems to me that the justice of the case would be met if I do no more than remind Magistrates of the appropriate principles to be applied in approaching the question of whether or not a given offence should be characterised as ‘trifling’.
On the other hand, so far as Ms Fargher’s position is concerned, I think it fair to leave the tree where it has fallen and not to interfere with the sentence which was imposed upon on her.
[19] [1999] SASC 206 at [20].
Similar considerations apply here. This judgment serves to remind Magistrates and prosecutors of the nature and extent of the good cause defence and the appropriate principles to be applied when determining whether an offence trifling. The respondent has arguably been deprived of the opportunity to argue a proper defence for the reasons set out above. In my view, it would be unfair to revisit the sentence and to disqualify the respondent from holding or obtaining a driver’s licence for eight months and 10 days even though the sentence imposed upon him is indicative of error.
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