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

1. 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

2. 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.

3. 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 away.  It was during that journey that he was stopped by police and required to submit to a breath analysis.

4. Section 47B(1) sets out the penalties for driving with the prescribed concentration of alcohol. For category 2 offences a fine of between $500 and $900 then applied as well as not less than six months licence disqualification. The period of licence disqualification can be reduced if the offence is found to be trifling. Section 47B(3)(b) provides that:

   (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 it may order a period of disqualification that is less than the prescribed minimum period but not less than one month;

5. The magistrate found that the circumstances of the driving were atypical for such offences and that the offence was trifling.  In making that finding, he considered a number of features of the offending.  He noted that the breath analysis reading was at the lower end of the range of a category 2 offence and that the distance travelled was relatively short.  He referred to the absence of any intention on the part of the respondent to break the law;  he observed that the respondent’s reason for driving was unusual and that this was not a case where the respondent drove for his own convenience or for selfish purposes and that there was no demonstrated wayward driving or embarrassment to other road users.  The magistrate considered that, although none of these factors was in itself sufficient, their combined effect was to render the offence atypical and trifling.

   Arguments on appeal

6. Upon the appeal counsel for the appellant, Mr K Soetratma, argued that the magistrate erred in fact in finding that the driving was atypical and consequently that the dependent finding that the offending was trifling was an error of law.  It was submitted that the offending could not be rendered atypical merely by accumulating a number of factors which were each, in themselves, typical.  Mr Soetratma argued that the magistrate misinterpreted or misunderstood relevant case law and that he treated what were actually, at best, mitigatory factors as matters rendering the offending trifling.

7. Counsel for the respondent, Ms Davison SC, argued that there was no error in the magistrate’s approach.  The fact that the offence was a category 2 offence did not preclude a finding that it was trifling.  Category 1 offences were expiable in any event.  She put that, in assessing that issue, the magistrate was entitled to take into account that the distance travelled was short, the blood alcohol level at the lower end for category 2 offences, that the offence was committed inadvertently rather than deliberately and that no embarrassment was caused to other road users.  If taken collectively these matters could properly lead to a finding that the offence was not a typical one of its type and that it was trifling.

   Analysis

8. The leading statement of principle on the circumstances in which offending might be considered trifling in terms of the relevant section is found in the judgment of Doyle CJ, who formed part of the majority, in Siviour-Ashman v Police (2003) 85 SASR 23. There, the appellant had attended a bar and had carefully counted the alcoholic drinks she had. During the evening she asked the bartender for a glass of water and was given a fruit drink which she wrongly took to be non-alcoholic. It was accepted that had she not consumed that additional drink she would have been below the allowable concentration of alcohol. It was also accepted that she did not and could not have known that the drink contained alcohol. The Court considered whether the fact that she reasonably believed she was not offending was sufficient to render her offending trifling. Doyle CJ concluded that, given the limited relevance of a person’s advertence and state of mind in considering an offence against s 47B, the offending could not be considered to be trifling.

9. The Chief Justice outlined a number of principles in determining whether an offence might be considered trifling in terms of the subsection. He said that trifling means of slight importance or insignificant. He said that offending would not be trifling if it were typical of its type. Regard might be had, not only to the offending conduct, but also to the surrounding circumstances. He said however, that given the nature of the offence created by s 47B(1), more weight was to be given to the offending conduct than to the offender’s explanation for it or to an awareness of the fact that an offence might be committed. The Chief Justice said that where driving was found to be atypical, then there was a distinction between driving undertaken for an emergency or a humanitarian purpose, as opposed to driving for other reasons. The former purposes might lead to a finding that the offence was trifling, but the latter would not likely do so.

10. Applying those considerations indicates that the factors relied on by the magistrate did not justify a finding that the offending was trifling.  That this was not a deliberate attempt to breach the road rules did not really assist the respondent.  That might be the position in numerous cases to come before the courts.  Indeed, in Siviour-Ashman the Chief Justice observed that such a state of mind might not even amount to a significant mitigating factor:  [33].  Anyway, in the present case the respondent’s state of mind was not so much an affirmatively held view that he was not over the limit but was rather a mistaken estimation.

11. For similar reasons it cannot be of much consequence that the respondent’s breath analysis was at the lower end of the range for a category 2 offence.  The Parliament has specified three ranges to which certain penalties are to apply.  It follows, by definition, that an offence cannot be seen to be atypical by virtue only of where it falls within any given band.  At best, this factor is a mitigating factor in terms of the whole range of category 2 offences.  I consider the magistrate was wrong to have had regard to this as a primary matter in considering whether the offence was trifling.

12. The magistrate also placed reliance on what he considered to be the relatively short distance that the respondent set out to travel and his “unusual” reason for doing so.  I do not agree that a round trip of three kilometres is a short trip.  Cases considering whether an offence could be considered to be trifling based on the shortness of the journey have generally concerned much briefer episodes of driving.  For instance, in Campbell v Fuss (1991) 55 SASR 355 the finding was made because the defendant had travelled a distance of a few metres and then only to move a parked vehicle to avert possible danger arising from its being parked incorrectly. On the other hand in Police v Ludlow (2008) 181 A Crim R 235 White J considered that offending involving driving a motor vehicle 450 metres in order to repark it could not be regarded as trifling.

13. In any event here it could not be said that this journey was relevantly unusual or that there was a good reason, in the sense of an humanitarian purpose impelling the respondent to drive.  The particular circumstances in which this journey was undertaken might not have been usual in terms of the respondent’s experience, but they were not of the type contemplated by the cases dealing with what is atypical.  These were circumstances which tended to explain the respondent’s conduct, but did not in any way justify or minimise it.  Whatever pressure the respondent may have felt to accede to his son’s request and to embark on the journey, it could not go any distance in making the offence other than typical.  Obviously, if the respondent wished to comply with his son’s request there were other ways of doing so not involving driving.

14. 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

15. 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.

16. 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.