Police v RASHEED - [2012] SASC 25

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v RASHEED
[2012] SASC 25
Judgment of The Honourable Justice Vanstone
2 March 2012
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN THE BLOOD
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, AND CANCELLATION AND SUSPENSION OF LICENCES - GROUNDS RELATING TO USE OF INTOXICATING LIQUOR OR DRUGS
Appeal against penalty - respondent pleaded guilty to driving a motor vehicle whilst there was present in his blood a prescribed concentration of alcohol - magistrate found the offence trifling pursuant to s 47B(3) - magistrate reduced minimum six-month period for disqualification of driving licence to a period of one day - whether offence properly characterised as trifling.
Held: appeal allowed.
Road Traffic Act 1961 (SA) s 47B, referred to.
Siviour-Ashman v Police (2003) 85 SASR 23, applied.
Police v Ludlow (2008) 181 A Crim R 235; Campbell v Fuss (1992) 55 SASR 355, considered.

POLICE v RASHEED
[2012] SASC 25
Magistrates Appeal

VANSTONE J: The respondent pleaded guilty to driving a motor vehicle whilst there was present in his blood the prescribed concentration of alcohol, contrary to s 47B of the Road Traffic Act 1961 (SA). The magistrate found that the offence was trifling within the meaning of s 47B(3)(b). On that basis he disqualified the respondent’s licence for one day (against the minimum period of six months) and fined him $500, being the minimum fine available. This appeal challenges the finding that the offence was trifling.
Background
On the evening of 12 February 2011 the respondent was driving along Mount Barker Road at Aldgate when he was required to submit to a random breath test. The breath analysis showed a concentration of 0.08 grams of alcohol in 100 millilitres of blood, making the offence a category 2 offence: s 47A Road Traffic Act.
The respondent gave evidence before the magistrate explaining the events leading up to the offence. The respondent’s evidence was directed to proof that the offence was trifling. He said that earlier in the day he had attended an event at the Morphettville Race Course. He said that over the four hours he was there he drank four bottles of beer and approximately two and a half glasses of wine. Upon leaving he recognised a risk that he might be over the allowable limit and so organised for a commercial service to drive him in his own car home to Mount Barker. Some time after arriving, his wife took three of their children to a concert, leaving him at home with one of his sons. The two of them played cricket together for a time and then his son asked if they could have fish and chips for dinner. The respondent was inclined to agree to the request. He set off driving to the fish and chip shop, said to be approximately one and a half kilometres…

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 RASHEED

Details

AGLC: Police v RASHEED [2012] SASC 25
Case: [2012] SASC 25
Decision Date: 2 March 2012

CaseChat Overview and Summary

In the case of Police v Rasheed, the respondent, Rasheed, was charged with driving a motor vehicle with a prescribed concentration of alcohol in his blood. He pleaded guilty and appeared before a magistrate. The magistrate found the offence to be trifling under section 47B(3) of the relevant statute, and reduced the minimum six-month period of disqualification of Rasheed’s driving licence to a period of one day. The police appealed against the penalty, arguing that the offence was not trifling and that the penalty imposed was too lenient.

The primary legal issue before the court was whether the magistrate was correct in characterising the offence as trifling. The court had to determine whether the factors considered by the magistrate were sufficient to justify a finding that the offending conduct was atypical or that the offence was trifling. The court also had to decide on the appropriate penalty to impose if the offence was not trifling.

The court found that there was no evidence to suggest that the respondent’s driving caused any harm to other road users. However, the court held that this was not a sufficient factor to characterise the offence as trifling. The court held that there was nothing in the factors relied on by the magistrate, considered individually or collectively, to justify a finding that the offending conduct was atypical or that the offence was trifling. The court held that the offence was not trifling and set aside the magistrate’s finding to that effect. The court imposed a penalty of five months’ disqualification of the respondent’s driving licence, less one month that had already been served. The balance of the disposition by the magistrate was left undisturbed.

The orders made by the court were that the appeal be allowed, the order made by the magistrate that the respondent’s driver’s licence be disqualified for a period of one day be set aside, and in its place a period of licence disqualification of five months be imposed. The balance of the disposition by the magistrate was to remain undisturbed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is true that the respondent’s driving caused no embarrassment to other road users, but again, that is commonly the case where offences are detected at random breath testing stations.Conclusion In my view there is nothing in the factors relied on before the magistrate considered individually or collectively to justify a finding that the offending conduct was atypical or that the offence was trifling. For these reasons I consider that the appeal must be allowed. I would set aside the magistrate’s finding that the offence was trifling within the meaning of s 47B(3)(b) and set aside the period of licence disqualification imposed by the magistrate. In its place I would impose the minimum disqualification less one month, as a period of one month has already been served by the respondent. The orders I make are as follows:1.the appeal is allowed;2.the order made by the magistrate that the respondent’s driver’s licence be disqualified for a period of one day is set aside. In its place I order that there be a period of licence disqualification of five months;3.the balance of the disposition by the magistrate will remain undisturbed.

Ratio Decidendi

Legal Principle Established

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